Death of a Former Member: Lord Denham
 - Announcement

Lord McFall of Alcluith: My Lords, I regret to inform the House of the death of the noble Lord, Lord Denham, on 1 December. On behalf of the House, I extend our condolences to the noble Lord’s family and friends.

UK Community Renewal Fund
 - Question

Baroness Garden of Frognal: To ask Her Majesty’s Government what were the criteria for allocating money from the UK Community Renewal Fund; and what assessment they have made of the analysis by the Centre for Inequality and Levelling Up at the University of West London, published on 4 November, which found that 21 per cent of the funding went to areas in the bottom 20 per cent of the Index of Multiple Deprivation, and that two-thirds of the funding went to areas in the top half of that Index.

Lord Greenhalgh: The Government have confirmed that applications to the UK community renewal fund were assessed against the criteria set out in the prospectus and the assessment criteria published on GOV.UK. The analysis conducted by the University of West London used indices of multiple deprivation as an indicator for priority. Indices of multiple deprivation were not used for prioritising places under the UK community renewal fund. Instead, an index of economic resilience was used across Great Britain in identifying the 100 priority places. The prioritisation of place methodology and model has been published on GOV.UK. The analysis for Great Britain showed that 77%, or £146,198,866, of funding was allocated to a priority place.

Baroness Garden of Frognal: I apologise for the length of the Question, but I am not entirely sure that I am happy with the Minister’s Answer. Surely this fund is flawed and something of a sham. The money should be going to areas with high levels of deprivation, but places such as Knowsley in Merseyside, Sandwell, Middlesbrough and Hyndburn have received no moneys at all from this fund. How can the Minister ensure that they are not further disadvantaged when they bid for the UK shared prosperity fund in 2022? Will that have different indices as well?

Lord Greenhalgh: The sham is the analysis conducted by the University of West London. I have lived in west London all my life and I have never heard of the University of West London. Its error-strewn report has made this into something, but it contains error after error and there is no basis on which its analysis has any merit whatsoever.

Baroness Redfern: My Lords, the Government have stated that they will ensure that the UK community renewal fund reaches those most in need. In applying checks and balances to that funding, when must that money be spent and how will it contribute towards the Government’s ambition to preserve and enhance the union?

Lord Greenhalgh: With regard to union, it was very clear that we wanted to fund all four nations. That criterion was set from the outset. In addition, we wanted to raise all boats and strengthen the economic resilience of particular areas, which were banded A, B and C. I have been through this methodology and found it to be robust. What is more, the previous Secretary of State published the methodology and the current Secretary of State published the model. What more transparency could you ask for?

Baroness Hayman of Ullock: The Minister may well think little of the analysis of the Centre for Inequality and Levelling Up, but surely he thinks it important that the most deserving communities get the support that they need for levelling up. The Centre for Inequality and Levelling Up also asks for close monitoring of who is benefiting from the current tranche of bids. What monitoring arrangements have the Government put in place to ensure that the right communities get the funding that they deserve?

Lord Greenhalgh: As a local authority leader for some of the most deprived parts of the country, I used to look at the index of multiple deprivation very carefully. The borough that I led for six years had some of the most deprived communities, so I understand that, but the purpose of this fund was not to identify those most deprived communities. It focused on what was going to lift economies and therefore provide job opportunities and enable us to thrive us a nation. That was its purpose.

Lord Bird: My Lords, while we are talking about levelling up, is it possible to include the 500,000 people who are behind in their rent and may well be levelling down? We have spoken about this together and the Government have not yet come up with a solution for people who are behind in their rent or mortgage.

Lord Greenhalgh: The noble Lord is a champion and a crusader on this, and quite rightly. This is something that we take seriously and have taken particularly seriously during this pandemic, so that we can provide support for people and do not create the rough sleeping and homeless crises of the future. We will continue to work with the noble Lord to come up with practical measures to ensure that we deliver our ambition to end rough sleeping.

Lord Watts: My Lords, is the Minister saying that there is nothing that the Government and this fund can do to help councils and areas such as Knowsley to level up?

Lord Greenhalgh: Of course I am not saying that. I am saying that there is a methodology and approach and that they are transparent. We have funded those bids according to that methodology. There is nothing controversial about that; there is nothing to see here.

Baroness Humphreys: My Lords, in Wales, additional funding has long been allocated to support communities that are struggling with high levels of poverty and deprivation. Could the noble Lord explain what criteria are being used, as over 60% of so-called levelling-up funding in Wales is being allocated to the 35% of constituencies that are Conservative held? Is this not another case of the UK Government funnelling money into their own back yards?

Lord Greenhalgh: I know that is why the question has been asked, but it is simply not the case. Levelling up is around infrastructure—digital infra- structure, heavy infrastructure, transportation systems and the things that will bind this country together. I have a briefing today about the community renewal fund, which is the precursor to the UK shared prosperity fund. This is not about the politics you saw in Tammany Hall in New York; this is sensible stuff that aims to level up this country.

Lord Flight: My Lords, who administers the community renewal fund and how is it financed?

Lord Greenhalgh: The UK community renewal fund will ultimately be financed by the taxpayer, although it is the successor to the EU structural funds. It is important to test things out with the community renewal fund, so that we get it right when we introduce the shared prosperity fund, which will be worth over £2.6 billion over the next three years.

Earl of Clancarty: My Lords, I worry that the Government are not addressing what community renewal means in its wider, profounder sense. This funding, welcome as it is to those who receive it, is taking place against the reality of councils, particularly in deprived areas, that are so starved of money that they are contemplating selling off important community assets such as theatres and children’s centres. Will the Government look more carefully at the meaning of community, rather than seeing it solely as new build and private enterprise?

Lord Greenhalgh: I should probably declare my commercial interests before I answer the question. The reality is that local government has had a pretty generous settlement. The core spending power has increased.

Noble Lords: Oh!

Lord Greenhalgh: Well, given the state of the national finances, increasing the core spending power to the degree that we have shows a real commitment to  local government. I point out that this particular fund is all around the skills and what it takes to increase the economic output of an area. The levelling-up fund is another fund that is focused on the more capital-intensive digital and road and rail infrastructure.

Baroness Neville-Rolfe: Does my noble friend agree that the best way to achieve levelling up is by economic growth and higher productivity, helped by good local authorities? I agree with my noble friend that the rising tide raises all boats. We should be seeking to make that a reality in these difficult times.

Lord Greenhalgh: The reality is that we need local leadership. We need the vision in local places. We need to understand why a place should be competitive and then, with that local leadership, backed up by taxpayer pump-priming, turn places around. We have too few local leaders who have clear vision at the moment. There are some examples: we are seeing the success of our mayors, and we have to back them to ensure that the whole country rises. But the rhetoric about lifting all boats is precisely right.

Lord Bassam of Brighton: My Lords, the noble Lord has made a good case for the community renewal fund, but is it not the case that the allocations were delayed from July to October? Will that mean that the application and monitoring of those funds will take a longer period? If not, the funds will be wasted. Levelling up is far too important to be bungled by this Government.

Lord Greenhalgh: There is always delay. I have been a Minister for 18 months now: I am not used Whitehall, but I have seen many things delayed and that is not always as a result of direct ministerial influence. Things just take time. We have been through a global pandemic and, yes, this will probably delay things, but the commitment is there—there is clarity—and this is not a case of double-dealing or dodginess—

Noble Lords: Oh!

Lord Greenhalgh: No, it is not—absolutely not. A clear methodology has been set out. It will benefit all the regions of the UK pretty much in equal part.

Lord Wallace of Saltaire: My Lords, can the Minister tell me how many different pots there are for levelling up for councils to bid for? I was told that there are now over 100. If so, do councils have to spend money trying to fulfil different sets of criteria for each one?

Lord Greenhalgh: I have some sympathy with the noble Lord’s first question: there are probably too many funding pots. We are doing our best to narrow those down as we move towards the levelling-up fund for capital and the UK shared prosperity fund. We do not want local authorities to become grant farmers. We want them to focus on the vision for their place and then to apply for a limited number of pots. It is  appropriate to have deals as well, on the other side, but, in terms of central pots, we are broadly going down to two main ones.

Covid-19: National Memorial
 - Question

Lord Selkirk of Douglas: To ask Her Majesty’s Government what progress they have made towards the creation of a permanent national memorial to those who lost their lives as a result of the COVID-19 pandemic and to those who risked their lives to save a great many others.

Lord True: My Lords, while the Government’s focus is on protecting lives, there is none the less the need to come together as a nation to mourn those who have sadly died during the Covid-19 pandemic. The Prime Minister announced the establishment of a UK commission on Covid commemoration to consider how to remember those whom we have lost and to commemorate what we have all been through. We will set out the membership of the commission and the terms of reference in due course.

Lord Selkirk of Douglas: I thank the Minister very much for his reply. Does he agree that, when it comes to creating a national memorial in due course, it will be possible to commemorate the courageous actions during the pandemic of doctors, nurses, medical staff, specialists and members of the emergency services and the Armed Forces, all of whom risked their lives in order to save the lives of a great many others?

Lord True: I strongly agree with my noble friend. Already, of course, in a striking gesture, Her Majesty the Queen awarded the George Cross to the National Health Service across all parts of the United Kingdom. However, as my noble friend asked, the commission will also consider how we can remember the courage of countless working people and volunteers, not just in the NHS but the Armed Forces, delivery drivers, transport staff, pharmacists and teachers—it is invidious to name just some of them; they are legion —who have put themselves out to serve this nation.

Baroness Thornton: My Lords, on these Benches we fully support preserving the Covid-19 national memorial wall across the river. It is a people’s memorial and every heart there represents a beloved person lost to their family and friends. So I ask the Government to work with the stakeholders involved to preserve that wall because, whatever and however the formal memorial is planned—quite rightly, it must be a national memorial that covers everybody affected by the pandemic —does the Minister agree that this is not a choice between one or the other?

Lord True: My Lords, we all need to find ways to remember. My aunt died in the Spanish flu pandemic, which was a lifelong sadness to my mother, 70 years after her death. Memories of this pandemic will last equally long and bite equally deep, as the  noble Baroness said, in many personal ways. We are aware of the call for the memorial wall to become a permanent national memorial and we welcome the discussions being led by Lambeth Council on this.

Baroness Barker: My Lords, does the Minister agree that it is perhaps a bit premature to decide on one national memorial at the moment, as we are far from near the end of this pandemic? Does he know about the memorial forests initiative, whereby people can plant a tree in memory of somebody they know? That campaign has the additional benefit that people can access it online—they do not have to go to London to pay remembrance. Does he think that is worth promoting more generally to the public?

Lord True: The noble Baroness of course makes a very good point; I would always commend the planting of trees. We have received a very large number of views and suggestions from parliamentarians, as we have heard today, and the public on how this period should be remembered and commemorated, which we will pass on to the commission as it is established. I assure noble Lords that it will give full consideration to all initiatives and ideas and provide recommendations to the Prime Minister.

Viscount Ridley: My Lords, does my noble friend agree that we owe it to the dead, as a memorial, to find out how this pandemic began? I declare an interest in having co-authored a book on the topic.

Lord True: My Lords, I do agree, although that is obviously not entirely under the control of Her Majesty’s Government. However, there are billions of people across the world who will need to be satisfied and have their minds put at rest in the way my noble friend asks.

Baroness McIntosh of Hudnall: My Lords, does the Minister agree that perhaps one of the best memorials to those who have died, and those who may still die, from this virus would be that we are better prepared for the next one?

Lord True: Yes, we should always seek to be better prepared for everything in life. When we have the inquiry, I have no doubt there will be lessons to be learned by this Government, and I agree with the noble Baroness that the Houses of Parliament and the whole community will want to learn every lesson.

Lord Lexden: My Lords, will the memorial encompass our entire country—all four parts of our United Kingdom?

Lord True: Yes, it will be a United Kingdom commission.

Lord Harris of Haringey: My Lords, I am not sure that the noble Lord fully answered the question from my noble friend Lady McIntosh. If we are to be prepared for this eventuality, are we preparing ourselves  for those eventualities that we might not yet be able to foresee? Will the Government look at their contingency arrangements—I declare my interests in the register on this—to make sure that they report regularly and in full to Parliament on the mitigations in place for each of the risks on the national risk register?

Lord True: My Lords, the noble Lord is an indefatigable—I am not sure that I can say that word with the current state of my voice—advocate of the national risk register, and I accept where he is coming from. Obviously, there are certain unknown unknowns that are difficult to know, but I absolutely accept the spirit behind his question.

Lord Grocott: My Lords, which are the unknown unknowns that are easy to know?

Lord True: I will bow to the superior ingenuity of the noble Lord opposite on that question.

Lord McColl of Dulwich: My Lords, the question has been raised about trying to prevent mortality from a future epidemic. The present epidemic is largely due to—or at least made much worse by—the fact that 71% of British people over the age of 70 are obese, and obesity and Covid are a fatal combination. If we want to prevent future mortalities, we have to get the nation to slim down. The Prime Minister has raised the whole question of reducing obesity by himself taking three stone off and advocating that that is what we should all be doing.

Lord True: My Lords, my noble friend lays a gentle stiletto between my ribs. Apart from the humorous side of it, there is a very serious side to what my noble friend says. There is an unequivocal connection in the terms that he describes, which each of us should bear in mind and which we should all be well aware of.

Lord Wigley: My Lords, are not nurses and those working in care homes among those who gave most to save people during the pandemic? Would it not be a worthy way of recognising that to give them all a decent pay settlement?

Lord True: My Lords, I am not going to debate pay policy from the Dispatch Box, but I will take the noble Lord’s comments—to which I heard some assent in the House—and pass them on to colleagues in government.

Lord Sterling of Plaistow: My Lords, I am very taken with the idea of planting trees; it has been done in other parts of the world. In the years to come, there will be many more victims of Covid-19, and it would mean that anybody in future could have a tree planted, and that would help with the greening project ahead of us as well.

Lord True: My Lords, again I see a wonderful unity across the House, which I do not always sense, on the idea of planting trees, and I am sure this will be something that the commission will very much consider.

Children and Families Act 2014: Education, Health and Care Plans
 - Question

Lord Blunkett: To ask Her Majesty’s Government what plans they have to amend the Children and Families Act 2014; and in particular, the eligibility requirements for obtaining an Education, Health and Care plan.

Baroness Barran: My Lords, the special educational needs and disabilities system, established in the Children and Families Act 2014, does not consistently deliver for children, young people or their families. This is why the Government established the SEND review, which will consider all elements of the SEND system, including the effectiveness of education, health and care plans. We intend to publish proposals for full public consultation in the first three months of 2022.

Lord Blunkett: My Lords, attention has rightly been paid over recent days to the disappeared children, who have not attended school or anywhere else in the last 18 to 20 months. One of the worst aspects of this is that tens of thousands of children with special educational needs have disappeared because they do not have the support necessary. We have had an NAO report, and a Commons Select Committee report two years ago; we have had an internal review going on for two years. Is it not time that the Government accepted that the simple truth is that, while capital spending is very welcome, what is needed is cash to fund the EHCPs, to make certain that young people can get to school, stay at school and have a decent education at school?

Baroness Barran: The noble Lord is right to remind the House of the tragic events of the last few days. I think there are different aspects to addressing this. He is right that the Government have announced £2.6 billion of additional capital funding to provide more places, and those are much needed. The Government are also providing considerably more revenue funding to local authorities—an increase in 2022-23 of £780 million. The review will also focus—I am sure the noble Lord will agree with this—on earlier intervention wherever possible.

Lord Addington: My Lords, I declare my interests in this field. The process of getting an EHCP is one in which you are advised to have lawyers with you, and often you have to go to appeal, where you are opposed by lawyers. How does that suggest that the system is anything other than a failure, or is it designed to be something that supplements the legal system?

Baroness Barran: It is certainly not designed to supplement the legal system. The noble Lord is right to raise the issue of tribunal hearings, but I remind the House that in 2020 only 1.7% of all appealable decisions resulted in an appeal to the SEN Tribunal.

Lord Lexden: My Lords, my noble friend’s predecessor said on 4 March last year that the special educational needs and disabilities review was
“an absolute priority for the Government.”—[Official Report, 4/3/20; col. 694.]
We heard yesterday that the Government have some difficulty in defining the word “priority” with any precision. Why, apart from Covid, has this review, which began in 2019, taken so long?

Baroness Barran: I understand my noble friend’s diplomatically put question. He is right to raise the issue of Covid, but he will also know that this is an incredibly complex area. We have set up a steering group that includes families, schools, local authorities and other independent organisations. We are committed to the deadline, which has now been announced, of publishing the Green Paper in the first quarter of next year.

Baroness McIntosh of Hudnall: My Lords, the Minister referred to early intervention. Does she agree that one of the difficulties with this area is that families with children who appear to be needing assessment —for example, for autism or learning difficulties—find it very difficult even to get the assessment, never mind the care plan that would come from it? Can she say how that problem is being addressed? How should families who cannot afford to spend money on private assessments conduct themselves?

Baroness Barran: The noble Baroness raises an important point. I feel I cannot comment in detail ahead of the Green Paper, but those are exactly the sorts of issues we are working with families, local authorities and other professionals to address.

Ukraine and Russia: Military Developments
 - Question

Lord Coaker: To ask Her Majesty’s Government what assessment they have made of military developments on the border between Ukraine and Russia.

Lord Ahmad of Wimbledon: My Lords, we are deeply concerned by Russia’s pattern of military build-up in and around Ukraine and are closely monitoring the situation. My right honourable friend the Foreign Secretary has held discussions with her Russian and Ukrainian counterparts, restating the UK’s strong support for Ukraine and urging the Russian Government to de-escalate the situation. We are looking at a package of sanctions to raise the cost of any further aggressive Russian actions against Ukraine. We already support Ukrainian military development and regularly conduct joint exercises.

Lord Coaker: My Lords, we are edging ever closer to a real crisis in Ukraine, with the US Defense Intelligence Agency speaking of a potential 175,000  Russian troops on the border; with emergency talks between President Biden and President Putin; and with the President of Ukraine asking for British soldiers. The Minister will note that this is a very real crisis and one morning we are going to wake up, as the Defense Intelligence Agency says, to a Soviet invasion of Ukraine. What is our response going to be if anything like that happens? What are we doing to talk to the Russians to secure assurances from them about this situation? Are we talking to our European neighbours? Let us get it sorted before we have a very real crisis on our hands.

Lord Ahmad of Wimbledon: My Lords, the noble Lord speaks from deep insight as a former shadow Secretary of State for Defence. I assure the noble Lord that we are working very closely with our European allies and indeed the United States. As the noble Lord accurately said, recently President Biden and President Putin have had discussions, but over the last couple of days there were also meetings between our Prime Minister and other leaders, including our European allies, where our Prime Minister updated others on his conversation with President Putin. Equally, at the OSCE recently, my right honourable friend the Foreign Secretary, among others, met the Foreign Ministers of both Russia and Ukraine and reiterated the points that I have made. Today, as the noble Lord may know, we are engaging in a strategic dialogue with Ukraine in London.

Lord Lancaster of Kimbolton: My Lords, the United Kingdom has been a key contributor to the enhanced forward presence in Estonia and Poland, underlining NATO’s Article 5 principle that an attack on one is an attack on all. Of course, Ukraine is only an aspirant member of NATO, so Article 5 does not apply, but has there been any discussion within NATO about potentially delivering a parallel programme to send a very clear message to the Russians that we support our Ukrainian allies?

Lord Ahmad of Wimbledon: Again, I can assure my noble friend. He is right to raise the issue of NATO. We remain very strong supporters, based on the 2008 Bucharest summit declaration, of Ukraine’s membership of NATO. I assure my noble friend that we are talking to NATO allies on this very point; indeed, it was a subject of conversation in my right honourable friend the Foreign Secretary’s recent meeting with NATO.

Baroness Coussins: My Lords, when Russia annexed Crimea, there were reports that we would have been better able to anticipate and track events if there had been more Russian speakers in the Foreign Office. Are we better equipped now to monitor what might be happening between Russia and Ukraine?

Lord Ahmad of Wimbledon: My Lords, Russian is one of the languages that form part of our diplomatic academy, and of course those deployed to Russia receive language training. Our diplomats speak more than 40 languages, and Russian is one of them.

Baroness Smith of Newnham: My Lords, when the Soviet Union invaded Afghanistan in 1979, the European response was delayed because it happened at Christmas. When the Americans left Afghanistan, the British response was marred by the fact that the Foreign Secretary and the Permanent Secretary were both on holiday. Can the Minister tell the House whether the Foreign, Commonwealth and Development Office is now looking again at leave policy to make sure that at crucial times somebody is always in the office?

Lord Ahmad of Wimbledon: My Lords, in any crisis lessons are learned, and the noble Baroness is right. The challenges of the situation we saw in Afghanistan are all too apparent. What we did achieve we look at with a great degree of humility, and we must show humanity in our response to Afghanistan. On the issue of Christmas, and the situation not just in Ukraine but in other parts of the world, we are very much prepared and focused on that, as is my right honourable friend the Foreign Secretary.

Lord West of Spithead: My Lords, I feel a little reassured by the Minister’s answer. The response from the Government Front Bench the previous time we debated this in the House—that a thermonuclear war would be “unwelcome”—did not really reassure me.
On Ukraine itself, there is very real concern that there are some in Ukraine who would like to stoke this for something to happen, and part of that is because we have pushed for it to become a member of NATO. I think that is a mistake because it has caused a problem within Russia. I ask the Minister: are we in a very firm dialogue with Ukraine to make sure that it keeps a clamp on what is happening there and that we are not promising it things such as NATO, which do nothing but encourage the situation to get worse?

Lord Ahmad of Wimbledon: My Lords, the answer to the noble Lord’s second question is: yes, we are very closely engaged with Ukraine, as we are today, on the issue of its NATO membership and, indeed, our support. The support we have given militarily is very much defensive and based on technical support as well.

Lord Balfe: My Lords—

Lord King of Bridgwater: My Lords—

Baroness Fall: My Lords—

Lord Balfe: My Lords, there have been a lot of difficulties in Ukraine, partly with the non-implementation of the agreement made in Minsk, the need for talks about the future of eastern Ukraine, and a follow-up of the initiative of the Finnish President to de-escalate the situation and have a peace conference in Europe to look at the outstanding issues that have arisen following the dissolution of the Soviet Union. Should not we put our efforts behind those of the Finnish President to get a discussion going?

Lord Ahmad of Wimbledon: My Lords, we are supportive of all peaceful efforts, and in particular we are focused on the Minsk agreements, which Russia has also signed—and we ask it to uphold that agreement.

Lord Collins of Highbury: My Lords, one thing that the Minister mentioned is working with our allies. Sanctions, as he knows, are ineffective without support from allies. President Biden’s talks with President Putin resulted in certain conditions being laid down. The United States National Security Adviser, Jake Sullivan, reported on some of the counter-measures. What everyone in this House wants to know is whether this Government will be prepared to work with our allies in implementing such measures in time, unlike their failure fully to implement the Russia report.

Lord Ahmad of Wimbledon: My Lords, on the noble Lord’s second point, I have written to him and, if there are further questions, I shall follow it up.

Lord Collins of Highbury: I have not got it.

Lord Ahmad of Wimbledon: I have a copy of the letter, and I can give it to him afterwards. On his earlier point, the short answer is yes. When we have worked on sanctions, we have worked with our EU allies as well as others.

Lord Stirrup: My Lords, this is not an isolated crisis but part of a long-term campaign by a gangster regime, which includes international assassinations, the subversion of legitimate Governments and interference in democratic processes. It has been going on for years and will go on for years. Does the Minister not agree that what is required is not just a set of responses to this particular incident but a long-term diplomatic effort to gain co-operation and determination across Russia’s opposition? Should we not be reducing a little bit the heat of the arguments that we have with some of our neighbours in favour of greater co-operation—stop squabbling over fish when the sharks are circling?

Lord Ahmad of Wimbledon: My Lords, there is little I can disagree with from the noble and gallant Lord, who speaks with great insight. I assure him that I agree with him totally—we need to take the temperature down. We have seen the situation with the likes of Mr Navalny, and where we have been most effective is when we have acted and acted together.

Lord King of Bridgwater: Is my noble friend aware that, when the Soviet Union collapsed, great attention was not necessarily paid to some of the territories—but in Russia the loss of Ukraine was much the most sensitive? I entirely agree with the point made by the noble Lord, Lord West. In this difficult situation, in which Russia has now seen the steady advance of NATO right up to its very borders, the sensitivity of this situation—not to allow any action against Ukraine but to recognise the genuine Russian concern—needs to be properly addressed.

Lord Ahmad of Wimbledon: I agree with my noble friend, which is exactly why my right honourable friend the Prime Minister and my right honourable friend the Foreign Secretary have engaged directly with President Putin and Foreign Minister Lavrov. Again, we continue to engage with Russia through other channels, including at the OSCE and the UN Security Council.

Lord Campbell of Pittenweem: My Lords—

Lord McFall of Alcluith: My Lords, that concludes Oral Questions for today.

Parliamentary Partnership Assembly
 - Motion to Resolve

Lord Ashton of Hyde: Moved by Lord Ashton of Hyde
To resolve that this House:
(1) takes note of the provision in Article 11 of the UK–EU Trade and Cooperation Agreement for the establishment of a Parliamentary Partnership Assembly (PPA) consisting of Members of the European Parliament and of Members of the Parliament of the United Kingdom, which:
(a) may request relevant information regarding the implementation of that agreement and any supplementing agreement from the EU–UK Partnership Council established by Article 7 of that agreement, which shall then supply the EU–UK PPA with the requested information;
(b) shall be informed of the decisions and recommendations of the EU–UK Partnership Council; and
(c) may make recommendations to the EU–UK Partnership Council;
(2) agrees that a delegation from the UK Parliament consisting of 35 members drawn from both Houses should participate in such an Assembly; and
(3) takes note of the first report from the House of Lords Commission, EU–UK Parliamentary Partnership Assembly (1st Report, HL Paper 114) and confirms that the procedures currently applying to the nomination, support and funding of delegations to the Parliamentary Assembly of the Council of Europe, the NATO Parliamentary Assembly and the OSCE Parliamentary Assembly should apply to the delegation to the EU–UK PPA.

Lord Ashton of Hyde: My Lords, before I speak to the Motion, I extend my condolences to the family and friends of my late noble friend Lord Denham who, as the Lord Speaker announced earlier, died at the weekend. Lord Denham served this House with great distinction for more than 70 years, including as Government Chief Whip for 12 years.
The Motion standing in the Leader’s name invites the House to agree in principle to its participation in the EU-UK Parliamentary Partnership Assembly, or PPA. The House of Commons agreed a Motion in the same terms on Monday this week, and the European Parliament decided its intention to participate on 5 October. The House of Lords Commission discussed the participation of this House at its meeting on 16 November and in its first report of this Session set out some background to help inform the House’s decision today. That report was published on 25 November.
The Motion is the culmination of many months of careful and patient dialogue between the two Houses and with the European Parliament, much of which has been carried out on behalf of this House by the noble Earl, Lord Kinnoull. I would like to put on record my thanks for the work that he and his team have done to help get the PPA off the ground. I beg to move.

Lord Cormack: Would it not be very appropriate if, on this occasion, those Members from this House and the other were elected by their colleagues?

Lord Ashton of Hyde: My Lords, this is not a Committee of the House. This is the way that all parliamentary delegations are appointed, and we see no reason why this should be different from the NATO Parliamentary Assembly or the Parliamentary Assembly of the Council of Europe.
Motion agreed.

Customs Safety and Security Procedures (EU Exit) (No. 2) Regulations 2021
 - Motions to Approve

Viscount Younger of Leckie: Moved by Viscount Younger of Leckie
That the draft Regulations and Order laid before the House on 15 November be approved.
Relevant document: 22nd Report from the Secondary Legislation Scrutiny Committee. Considered in Grand Committee on 7 December.
Motions agreed.

Education (Assemblies) Bill [HL]
 - Third Reading

Motion

Baroness Burt of Solihull: Moved by Baroness Burt of Solihull
That the Bill do now pass.

Baroness Burt of Solihull: My Lords, in moving that this Bill do now pass, can I just say how delighted I am that this landmark Bill has reached Third Reading and will shortly conclude its journey through this place? I am grateful for the wide support it has received from noble Lords and from Humanists UK, which has assisted me throughout.
Colleagues have rightly recognised the importance of enabling children to take part in inclusive assemblies as part of their school day, and the pressing need to  address the current injustice whereby those children who do not wish to take part in collective worship can at best be left twiddling their thumbs and at worst be ostracised from their peers, while the structured school day carries on without them.
The UK is the only sovereign state in the world to impose worship in all state schools, including those without a religious character. This Bill would free up schools to hold assemblies on topics parents want to see covered and uphold children’s rights to an inclusive education. It would also reflect the recommendations from the UN Committee on the Rights of the Child, which has urged the UK to repeal these collective worship laws.
Finally, I just place on the record my heartfelt thanks to all noble Lords who have engaged with this Bill throughout its progress. It has led to robust and stimulating debate about the moral framework within which we educate our children. I wish the Bill well on its next stages in the other place, where the chair of the All-Party Parliamentary Humanist Group, Crispin Blunt, intends to pick it up. Meanwhile, I beg to move
Bill passed and sent to the Commons.

Rating (Coronavirus) and Directors Disqualification (Dissolved Companies) Bill
 - Third Reading

Motion

Lord Greenhalgh: Moved by Lord Greenhalgh
That the Bill do now pass.

Lord Greenhalgh: My Lords, it is a pleasure to see this Bill through to its conclusion.
The pandemic has had far-reaching and unexpected impacts and the business rates part of this Bill seeks to address its potentially distortive effects on the rating system and local government income. By clarifying that coronavirus and the Government’s response to it will not be considered a “material change of circumstances” for the purpose of property valuation, the Bill ensures that the rating system will continue to operate as it was intended to. It also removes a significant source of uncertainty for local councils.
I thank noble Lords for the engagement we have had during the passage of the Bill. We have sought to strike the right balance between getting this important measure passed quickly and leaving space for legitimate discussion on the wider issues at play, for instance the future of business rates. Considerable expertise has been in evidence, which will be of great value when we come to debate the more substantial changes that the Government have announced. In particular, I thank the noble Baronesses, Lady Blake and Lady Pinnock, for their careful scrutiny and, ultimately, the very welcome support they have offered.
The new power to investigate the conduct of former directors of dissolved companies and seek to disqualify them where appropriate will have far-reaching benefits to the economy, in terms of improved confidence in lending, and to business and the wider public, in protecting them from the actions of rogue directors.
Of course, there is the very pressing matter of ensuring that the Government have the tools they need to tackle those reprehensible individuals who have taken advantage of a public health crisis to line their own pockets, and this new measure will play its part in bringing them to task. I am sure noble Lords will agree with me that it is only right that the retrospective provision in this measure will mean that the investigation of those individuals may start immediately upon Royal Assent.
As well as the noble Baronesses, I extend my thanks to the noble Lord, Lord Fox, and my noble friend Lord Leigh, who have provided thoughtful and constructive contributions to the debate on the director disqualification part of this Bill. Finally, I thank the Bill teams in the Department for Levelling Up, Housing and Communities, and the Insolvency Service for bringing me up to speed on some of the more detailed provisions and helping me get a proper understanding of the Bill. I beg to move that this Bill do now pass.

Baroness Blake of Leeds: My Lords, it is fair to say that there has been some significant consternation from noble Lords at the way this Bill was initially put together. However, in the main, we support its passage to get help to those in serious need.
We expressed our ongoing concerns at different stages of this Bill. It is obvious that the whole area of business rates needs urgent review and root-and-branch reform. Likewise, enormous concerns remain as to whether the Insolvency Service is sufficiently resourced to meet its obligations under the Bill with regard to the significant increase in business, as outlined.
I put on record my appreciation of the informed contributions from the noble Lords, Lord Fox and Lord Leigh, the noble Earl, Lord Lytton, and the noble Baroness, Lady Pinnock. I thank my noble friends Lord Hunt and Lord Sikka for their invaluable insights and knowledge on these matters.
From these Benches, we express our gratitude to the Bill team, the clerks and the staff of the House, and the Insolvency Service for the in-depth briefings it provided. I also thank both Ministers involved in this Bill: first, the noble Lord, Lord Greenhalgh—I particularly acknowledge the further detailed investigation he went into when the cause of our concerns over the business rates issue came to light—and the noble Lord, Lord Callanan, for his continued courtesy in offering regular briefings from his team and the insolvency support service on the various matters under consideration.
Finally, I thank both Ben Wood and Dan Harris, our excellent advisers, for their unfailingly high standard of support throughout the proceedings.
Clearly, both matters leave further work to be undertaken in both Houses, as has been outlined. I will watch the implementation of provisions with great interest.

Baroness Pinnock: My Lords, on behalf of my noble friend Lord Fox, I thank the noble Lord, Lord Callanan, for the constructive meetings that helpfully resolved the issues in the part of the Bill dealing with directors’ disqualifications and insolvency. I thank the Minister for the time he devoted to discussions on the Bill and the private meetings we held to try to resolve various issues, some of which remain; nevertheless, we are happy that the Bill has to pass to deal with the issues in front of us. I am still concerned about its retrospective nature, an issue that we did not fully resolve, inevitably. As the noble Baroness, Lady Blake, has said, the reforming of business rates is still a major concern. But with that in mind I wish to thank everybody who was involved, particularly Sarah Pughe, from the Lib Dems’ legislative team, for her help and advice. I am grateful for the way the Bill was discussed and debated so that we were, in the end, able to support it. With that, I thank the Minister for his help.

Earl of Lytton: My Lords, I will make a contribution from, as it were, the technical Benches on the matter of non-domestic rating. I thank the Minister—this will probably be the only time I can thank him publicly—for writing to me about matters he raised when we were at a previous stage of the Bill, in connection with the package of measures the Government have put in place to try to alleviate the problems facing businesses. I do not know whether the right term is “sidestep”, but I suspect he did not quite get the point I was making. Where a major manufacturer carries out works to meet an environmental target—for decarbonisation, for example—and in doing so wrecks something tantamount to a building or structure, or an item covered by the plant and machinery order, a proportion of its value automatically gets built in as an addition to the rateable value. That has been described to me as the double whammy of having to pay for the improvement to meet a government-imposed target, and additional rates. I was trying to focus on specific instances involving a building or structure, or the plant and machinery order, but I leave that to one side because that was to some extent an overture to what the Bill is about. I mention it only because the Minister was making the point about the assistance the Government have provided.
As for the Bill itself, I obviously regret a business rating measure of such a binary nature preventing the effects of coronavirus being properly reflected in rental values as a material change of circumstances for the purposes of making appeals against the assessments. Although the government package of reliefs and other support for the business sector is extremely welcome, it none the less pales into insignificance compared with what businesses could have expected, had a material change of circumstances applied. I will leave that there.
The Government say that the material change of circumstances was never intended to apply to things like pandemics. Well, probably not, but there has never been a time like this when HM Treasury and HMRC have been quite so keen to protect their income streams come what may, regardless of the precise effects on businesses. I hope this Bill does not have the consequences I fear it might, but I remain concerned that the whole process of business rates is beginning to drive responses,  which should always be a warning sign with any taxation measure going forward. That said, I thank the Minister and the Bill team, and other noble Lords who have spoken up for the business rate payer. I wish this Bill a safe passage, and I hope it will not fulfil my worst prognostications.
Bill passed.

Armed Forces Bill
 - Commons Reasons

Motion A

Baroness Goldie: Moved by Baroness Goldie
That this House do not insist on its Amendment 1, to which the Commons have disagreed for their Reason 1A.
1A: Because a presumption in favour of the offences in question being heard in the civilian courts is not necessary or justified.

Baroness Goldie: My Lords, with the leave of the House, in moving Motion A I will address Motion A1, and then Motions B and B1. Obviously there will be a certain element of déjà vu in my remarks but I shall do my best to explain once again why the Government hold to the view they do on these issues.
Over the last 20 years, the service justice system has gone through many changes and been transformed for the better as a result of them. There have been numerous reviews and inquiries, some as a consequence of operations, but all of which have enabled the service justice system to develop and improve. It is no longer recognisable as the system existing 10 to 15 years ago with which many of your Lordships were familiar.
The service police, prosecutors and judiciary are fully independent and trained. They are skilled and have the experience to deal with all offending to the same standard as their counterparts in the civilian criminal justice system. In particular, prosecutors are trained for rape and serious sexual offences, and judges/judge advocates are “ticketed” to deal with particular offences. Our code of practice for victims reflects the same principles as that for civilians and we use many of the same arrangements as in the civilian justice system, such as special measures for vulnerable witnesses. Any visitor to a court martial centre will find it remarkably similar to any Crown Court in England and Wales. In fact, in some areas the court martial is ahead of the civilian system, such as in the use of video links. It is for these reasons that the service justice system is legitimately positioned as an alternative jurisdiction to the civilian criminal justice system in respect of any criminal offence in the UK.
The recently published review by the retired High Court judge Sir Richard Henriques QC and the earlier Service Justice System Review by His Honour Shaun Lyons both strongly supported the continued existence of the service justice system. Sir Richard fully agreed with the Government’s decision to retain unqualified  concurrent jurisdiction for murder, manslaughter and rape. He recommended a number of proposals to further strengthen the service justice system so that it has the best expertise and capacity to deal with all crimes. We have prioritised his recommendation of creating a defence serious crime unit, headed by a new provost marshal for serious crime in the Bill. This is a major development for the service justice system and it demonstrates the Government’s commitment to achieving the highest investigative capabilities within it. The new unit will play a key role in our strategy to drive up conviction rates.
I know we all have a common aim, which is to ensure that every case is heard in the most appropriate jurisdiction. We also agree that in the event of disagreement about jurisdiction, a civilian prosecutor should have the final say. However, we maintain that rather than involving the Attorney-General as set out in this amendment and creating an in-built bias towards the civilian jurisdiction, a better approach is to strengthen the prosecutors’ protocols and clarify the role of the prosecutors—civilian and service—in decision-making on concurrent jurisdiction.
The service justice system cannot be half a justice system or a partial justice system. It has to handle all crimes committed by service personnel outside the UK. It makes sense for it to continue to be able to handle all crimes in the UK. In the UK, this will be subject to the operation of the prosecution protocols in respect of which the view of the civilian prosecutor, as I said, will prevail.
Just for the avoidance of doubt, I take this opportunity to reassure the House that the proposal in this Bill is not about increasing the number of serious cases to be dealt with by the service justice system; it will continue to be the case that a victim can choose whether to report a criminal offence to the service or the civilian police. Our proposal simply maintains the principle that both jurisdictions are capable of dealing with all offending, and asserts that qualified and experienced prosecutors are best placed to make decisions where there is concurrent jurisdiction. Removing crimes from the competence of the service justice system or introducing a presumption in favour of the civilian system for serious crimes, as in this amendment, inevitably calls into question the integrity of the service justice system, raising a perception by victims, witnesses, service personnel and the public that the service justice system is deficient. That is unacceptable to the Government. That weakening and fracture of the service justice system is impossible for them to defend.
Let me now address conviction rates in the service justice system for sexual offences, in particular for the offence of rape, because this is clearly important. In his report, Sir Richard Henriques makes the point at page 201 that the comparison of conviction rates between the service and civilian justice systems overlooks the fact that the service police refer, and the Service Prosecuting Authority prosecutes, cases that would have been discontinued in the civilian system.
The number of rape cases prosecuted in the civilian system stands at between 1.6% and 3% of those reported to Home Office police forces. The Crown Prosecution Service has announced an action plan to address this  disparity. Noble Lords will recall that the Government are also working on a new strategy for the service justice system when dealing with cases of rape and other serious sexual assaults. In the service justice system, 55% of rape investigations carried out by the service police in the period from 2017 to 2019 led to a referral to the Service Prosecuting Authority, and 27% of rape investigations led to a suspect being charged. In 2020, 50% of rape investigations by the service police led to charges and prosecution. Viewed as a proportion of allegations reported, rather than of cases prosecuted, the conviction rate in the service justice system is around 8% compared to around 2% in the civilian system. Let me be clear that this rate is still too low but should not be used as a reason for departing from the current principle of concurrent jurisdiction. Your Lordships may be interested to know that more recent data about cases of rape prosecuted at the court martial in the last six months show a conviction rate of just under 50%. Clearly, the service justice system is capable of investigating and prosecuting these cases.
I now wish to turn to specific details of the amendment, parts of the text of which cause concern. It seeks to introduce a consultation role for the Attorney-General in England and Wales only. The service justice system applies across the whole UK. That is why there is provision in the Bill for three separate protocols to ensure that the same approach is taken across the three legal jurisdictions of England and Wales, Scotland and Northern Ireland. As it stands, the application of the amendment to only England and Wales rather than the whole UK means that cases involving service personnel in those parts of the country would be handled differently from cases handled in Scotland or Northern Ireland. The amendment is unsuitable to be extended to Scotland or Northern Ireland. Consultation with the Attorney-General for England and Wales on prosecutorial decisions is entirely inappropriate for the devolved Administrations. For example, the independence of the Lord Advocate as head of the system of criminal prosecution and investigation of deaths in Scotland means that decisions are taken independently of any other person, and this includes not being subject to guidance or direction of another officeholder. It is my understanding that the Lord Advocate would be concerned about any extension of the proposed approach to Scotland.
Finally, I say with the greatest respect that it is not entirely clear to the Government what is meant by the condition of “naval or military complexity”, and how that will be defined, by whom and how it should be interpreted. This approach will lead to confusion and a lack of clarity about how and when the Attorney-General for England and Wales should be consulted.
On the other hand, Clause 7 of the Bill ensures that decisions on jurisdiction are left to the independent service justice prosecutors across the UK, and their respective civilian prosecutors, using guidance that they have agreed between them that will, no doubt, address the military dimension to be considered. Once in place, this new statutory guidance will be used to revise existing protocols between the service and the civilian police to bring much-needed clarity at all levels on how decisions on jurisdiction are made.
The Bill also makes it clear that where there is a disagreement on jurisdiction, the civilian prosecutor—be it the Director of Public Prosecutions for England and Wales, the Lord Advocate or the Director of Public Prosecutions for Northern Ireland—always has the final say. So the service justice system prosecutor cannot ignore the civilian prosecutor and railroad cases through the service justice system. In this way, the Government’s approach not only provides a solution which works UK-wide but provides ample safeguards to ensure that civilian prosecutors are involved and cases are dealt with in the most appropriate jurisdiction.
In these circumstances, I beg to move Motion A in my name, and I urge the noble Lord, Lord Thomas of Gresford, not to press his Motion A1.
I will now move on to Motions B and B1, in relation to the Armed Forces covenant. The covenant is described as:
“An Enduring Covenant Between the People of the United Kingdom, Her Majesty’s Government and All those who serve or have served in the Armed Forces of the Crown and their Families.”
The covenant was rebuilt a decade ago during a time, like today, of great pressure on the Armed Forces community, and has since been delivered in a highly successful manner, because it captures the appreciation and support for the sacrifices of that community of people from every walk of life across the United Kingdom.
This embodies the spirit of the covenant, which of itself is not a legal obligation, and nor should it be. But that is not to say that legislation has not been important in helping its delivery. That began with the obligation on the Secretary of State for Defence to report to Parliament annually on how service life impacts on the lives of servicepeople and former servicepeople. By working with our service providers and key stakeholder groups, from this one measure the covenant has evolved into one of the key drivers of welfare support to our Armed Forces community today. We are now taking the next step to promote and further strengthen the legal basis of the covenant, as we committed, which is why we are taking forward the provisions in this Bill.
Ensuring that key policymakers have the right information about the Armed Forces community and are therefore better able to make the right decisions for their local populations has been fundamental to our current success. Building on this foundation, the new duty will therefore oblige specified public bodies exercising a relevant healthcare, education or housing function to pay due regard to the three principles of the covenant. We see this as a sure and effective way of raising awareness among providers of public services of how service life can disadvantage the Armed Forces community, thereby encouraging a more consistent approach around the country.
However, these provisions are breaking new ground, and it is important that we see how they work in practice so that we both establish an evidence base and allow time for review and assessment to inform future enlargement of this obligation to any new bodies or functions. The provisions in the Bill will allow that enlargement more easily by granting the Secretary of State the power to add to the scope of the duty through regulations, without the need to wait for another Armed Forces Bill.
I have already outlined in this place the work we are undertaking with covenant reference group stakeholders to establish a process to help the Secretary of State to identify and assess functions that it would be beneficial to add to the scope of the duty, including those that are the responsibility of central government. This process will feed into our existing commitment to review the overall performance of the covenant duty as part of our post-legislative scrutiny.
I remind your Lordships of the current legal obligation on the Government to annually prepare and lay an Armed Forces covenant report. In the preparation of the annual report, the Secretary of State must have regard to the three principles of the covenant. He must obtain the views of relevant government departments and devolved Administrations in relation to the effects on servicepeople covered by the report. He must state in the report his assessment of whether servicepeople are facing disadvantage and, importantly, where he is of the opinion that there is disadvantage, what his response is to that, including consideration of whether the making of special provision would be justified. This means in essence that covenant delivery at a national level remains under continual review and, far from avoiding responsibility, demonstrates how this Government are committed to ensuring that the needs of the Armed Forces community are identified so that action can be taken.
On Report, I listed many of the initiatives that the Government have taken forward as a result of the clearer picture provided by the annual report, such as the inclusion of veteran-specific care pathways in England for mental health and prosthetic care in the NHS constitution, or the creation of a new schools admissions code. This level of oversight by Parliament, together with other regular procedures such as reviews by the House of Commons Defence Select Committee, and Parliamentary Questions and debates, will ensure that the Government are held to account in respect of the covenant and the Armed Forces generally. That was something that the Labour defence spokesperson confirmed in the other place on Monday, when he said that he would hold the Minister
“robustly to account when the Government fail to stand up for our armed forces or to act in the national interest.”—[Official Report, Commons, 6/12/21; col. 100.]
That is absolutely right, and what the Labour defence spokesman in the other place is there to do. We welcome this level of scrutiny. We have nothing to hide. In taking forward this Bill, the Government have no malign or covert agenda. We are simply seeking to provide a firm legal foundation to build on and progress the successful evolution of the covenant that we have seen to date. This new duty provides us with the opportunity to do that and I urge your Lordships to support the Government in this aim.
So I will be moving Motion B in my name, and I respectfully ask the noble and gallant Lord, Lord Craig of Radley, not to press his Motion B1.

Motion A1 (as an amendment to Motion A)

Lord Thomas of Gresford: Moved by Lord Thomas of Gresford
At end insert “, and do propose Amendment 1B in lieu—
1B: Page 4, line 27, at end insert—“(4A) Guidance under subsection (3)(a) must provide that where offences of murder, manslaughter, domestic violence, child abuse, rape or sexual assault with penetration are alleged to have been committed in the United Kingdom, any charges brought against a person subject to service law shall normally be tried in a civilian court unless, by reason of the circumstances, including but not limited to specific naval or military complexity involving the service, the Director of Public Prosecutions, after consultation with the Attorney General, directs trial by court martial.””

Lord Thomas of Gresford: My Lords, I will start with a quotation. In the Ministry of Defence
“there is one individual who is refusing to back down from the alleyway he has found himself in.”—[Official Report, Commons, 6/12/21; col. 105.]
Those are the words of the former Defence Minister Johnny Mercer, speaking in the debate in the other place on Monday night, on the amendment that we sent. He had earlier said:
“Unfortunately, I was in the room when this decision was made. The evidence did not support the Secretary of State at the time and the evidence does not support the Secretary of State today. I cannot vote against the Lords amendment; it is not the right thing to do. Let me be clear: when the Secretary of State made that decision”—
the issue that we are discussing today—
“it was against the advice of the officials in the Department and against the advice of his Ministers.”—[Official Report, Commons, 6/12/21; col. 104.]
Unusually, the veil is lifted. Mr Mercer clearly identifies Mr Ben Wallace, the Secretary of State for Defence, as the man in the alleyway who, against the advice of his officials and his Ministers, persists in resisting this amendment. The Minister knows that I have always assumed that she would not, in her personal capacity, back the Government’s position—but now we have direct evidence from Mr Mercer, her former colleague.
I could leave it at that. I could await the storm of protest from victims whose cases are dismissed at court martial, who will come forward brandishing the Judge Lyons review and the recommendations, after considerable investigation, contained in Sarah Atherton’s report, published last July, to which I have referred at every stage—Sarah Atherton being the only Conservative Member of Parliament ever for Wrexham.
I doubt that the controversy when those protests are made will improve Mr Wallace’s or the Government’s standing with the public on the highly sensitive issue of sexual offences, but I have a deep concern that the reputation of the service justice system in the UK should not be sullied.
On Monday afternoon, I took part in an international forum organised by my friend Professor Eugene Fidell of Yale University, founder and former president of the National Institute of Military Justice in the United States. The forum meets regularly. On this occasion, we considered the way that sexual offences are dealt with in the Canadian military. This is a live issue in many jurisdictions. I had hoped that the United Kingdom would show the way, but I will remind the House of some of the UK statistics that were before the other place.
The Atherton committee interviewed many in search of evidence. Some 64% of the more than 4,000 service- women who submitted evidence to the committee stated that they had experienced sexual harassment, rape, bullying or discrimination while serving in the  Armed Forces. Over the past five years, the average conviction rate for rape in civilian courts, from Ministry of Justice data, is 34%. Over the same five years, from using the data of the MoD, it is just 16%. The Minister told us that it was 15% for courts martial over the last six months. If you use Crown Prosecution Service data, the figures are even worse.

Baroness Goldie: I thank the noble Lord for taking this point of correction. The statistic I gave him for cases of rape prosecuted in courts martial in the last six months shows a conviction rate of just under 50%.

Lord Thomas of Gresford: Obviously, I misheard the noble Baroness. I will continue. As I said on Report, I am not aware of any murders committed in the UK by service personnel that have been tried by court martial. Of course, that could have happened only since 2006, when the novel change to concurrent jurisdiction was introduced. I have noted two cases of manslaughter arising from deaths at the Castlemartin range in west Wales, in live firing exercises, which involved the organisation of training activities, but I am not aware of any trials of sexual offences at court martial in the UK where the victim was a civilian. If there were any, I shudder to think of the effect on a civilian complainant of giving her evidence in intimate detail, against a serviceman, to a panel of uniformed officers, at a court martial.
Until now, the verdict of a court martial in such a case would have been by a simple majority, but I welcome the changes in this Bill that lead to a different situation. Imagine the difficulty of a junior service woman or man making a complaint of rape to her or his commanding officer, particularly if the alleged offender is senior to them in the chain of command, as is often the case. In addition to all the stresses and strains that already dissuade many women in civilian life from complaining, she, a servicewoman, has to face the effect on her career, an appearance before a board of senior officers, very low chances of conviction and the possibility that, in the event of an acquittal, the terms of her service will keep her in contact with her attacker. At least in a civilian court, the jury, to whom she would give her sensitive and difficult evidence, is 12 anonymous people drawn from the public. They will have no effect on her career and she is most unlikely ever to see them again—contrast that with giving evidence of sexual offences before a court martial.
Sir Robert Neill, with all his experience and wisdom, pointed out in the other place on Monday that the normal safeguards that apply in these cases in civilian courts are not yet available in the courts martial, in both the investigatory and procedural stages. Again, I draw the Minister’s attention to the effect upon the recruitment and retention of women in the Armed Forces. Would you expose your daughter to the probability that she will be subject to sexual harassment and worse, without the protection of a satisfactory service justice system?
I listened to the debate in the other place, and my amendment in lieu has changes. Objection was made to the role ascribed to the Attorney-General. The Minister has made a similar objection in this House, and I have to admit that I had assumed that the Ministry of  Defence and the Members in another place appreciated the constitutional position of the Attorney-General. It is one of his functions to supervise the Director of Public Prosecutions and the Director of Service Prosecutions and to be answerable in Parliament for them and their decisions. Hence it was Judge Lyons’ recommendation that the AG’s consent should be sought for the trial by a court martial of murder, manslaughter, rape and serious sexual offences committed in the UK. I agreed with his position: it represents the correct status of the Attorney-General in this country.
However, if the consent of the Attorney-General is the problem, this amendment in lieu leaves decisions about trial venue in the hands of the Director of Public Prosecutions—but only after consultation with the Attorney-General. The DPP would naturally consult the DSP, but, as the Minister, Mr Leo Docherty, made clear on Monday evening, it is the DPP’s decision in the end.
I say to the Conservative Benches that, if they vote against my amendment, they would be voting merely for the stubborn man in the alleyway, in Johnny Mercer’s words. They would be voting against the views of the officials in the Ministry of Defence and the departmental Ministers at the time that this was first considered, against the leading recommendation—number 1—of Judge Lyons and, above all, against the passionate findings of the Conservative Member of Parliament and her cross-party committee. Sarah Atherton—the only women in history to have risen from the ranks of the Armed Forces to become a Member of the House of Commons—knows what she is talking about. I ask those opposite not to vote against this amendment. I beg to move.

Lord Morris of Aberavon: My Lords, I am disappointed that the Government are maintaining their opposition to civilianising the courts martial for serious cases, such as murder, manslaughter and rape. The conviction rate for rape alone is 16% in the military courts, as reflected in the remarks from Mr Johnny Mercer in the other place. The Minister has given certain other figures for the last six months. I am very interested in this. Perhaps she could give me the size of the sample when she is winding up? Perhaps we could have a bigger sample, perhaps of a year. I would have thought that these figures alone would cause concern that something was wrong.
Service personnel do not have the statutory protection that other people have when they are tried in ordinary criminal courts or the statutory protections that are embedded in law to ensure that, where there is a majority direction, it is made known, the numbers are made known, and everyone knows where they stand. Nothing of that kind happens in courts martial. According to the Minister on a previous occasion, in some cases—they may be small in number—a verdict of 2:1 is certainly not in conformity with modern criminal jurisprudence.
It is more than five years since I expressed my concern following Sergeant Blackman’s case in a number of debates which I initiated and which led to the Lyons review. I commend the Government for setting up that inquiry. Perhaps they should have listened to its conclusions as expressed by Mr Lyons.
I shall be very brief but I foresee that, before the next renewal of the Army Act, someone concerned with good governance in the Ministry of Defence will see the inevitable case for radical reform. I support the amendment moved by the noble Lord, Lord Thomas of Gresford. He is absolutely right that the Attorney-General supervises the Director of Public Prosecutions. I see no constitutional difficulty in that. If the amendment may be technically wrong, then perhaps we should have had some kind of provision to enable the situation in Scotland and Northern Ireland to be reflected accurately. I support the amendment.

Lord Burnett: My Lords, I draw attention to my entries in the register of interests and declare that I had the honour to serve in the Royal Marines. I will make a short contribution to this debate. I have only recently discovered that Sir Richard Henriques has made mention of and quoted from speeches I and others made during the progress earlier this year of the now Overseas Operations (Service Personnel and Veterans) Act. I put on record my thanks to him for his thorough and compelling report.
I also support this amendment in the name of my noble friend Lord Thomas of Gresford, who has a wealth of knowledge and experience in these matters. If the Government remain unconvinced of the merits of Motion A1, they should commission further research into whether the hierarchical nature of service life is imported into the court martial system or if there is a perception that it is. In other words, are panel members influenced by the hierarchy’s view or what they perceive is the hierarchy’s view?
This concerned me in the Sergeant Blackman case; I played a minor role in the campaign to exonerate him. He served in 42 Commando Royal Marines, had an exemplary record and had been deployed on active service six times in Iraq and Afghanistan. This amounted to six six-month tours of intensive combat operations in seven years. This is not a complaint but an explanation. I always believed that the philosophy of a court martial was that the individual service man or woman should be tried by their peers. In other words, the panel should be comprised of individuals who had experienced the same horrors and dangers of the battlefield with which Sergeant Blackman was only too familiar. In his case, it was an allegation of murdering a mortally wounded enemy operator on the battlefield. The court martial conviction for murder was rightly quashed at the behest of the Criminal Cases Review Commission. A terrible miscarriage of justice was partly righted.
There were seven members of Sergeant Blackman’s court martial panel, five of whom had very little or no experience of combat soldiering in the most dangerous, arduous and exhausting conditions. These conditions were exacerbated by being in mortal danger most of the time, in the full knowledge that at any time Sergeant Blackman or any of the Marines under his command could have set off an improvised explosive device which could have killed or maimed any one or more of them. Two members of that panel had shared that experience, and Sergeant Blackman was convicted by a vote of 5:2 This was an insufficient ratio for a civilian criminal court to convict.
There are other disparities between court martials and civilian criminal court trials that I and others have mentioned in previous debates; they have already been aired here, in part. These disparities do not flatter the court martial system. The further research that I have suggested should also encompass service rivalry, battle fatigue—which can affect the strongest and bravest of men or women—the effects of provocation, and being in continuous mortal danger for months without a break, often in extreme weather conditions. It should also consider the impact of misogyny, sexism and racism in the court martial system, and whether civilian criminal courts would provide a more balanced and equitable system of justice.
Finally, in chapter 8 of Sir Richard’s admirable review, headed, “Legal support and the Defence Representation Unit”, he makes six recommendations, numbered 47 to 52 inclusive. I ask the Minister the following questions. First, have the Government accepted these recommendations? Secondly, will the Government consult on them? Thirdly, will there be a debate in this House on the results of that consultation? Finally, what is the Government’s timetable for their implementation?

Lord Craig of Radley: My Lords, I will speak to Motion B1 in my name. It was a great disappointment that the other place was not prepared to accept this House’s well-supported amendment, originally proposed by the noble and learned Lord, Lord Mackay of Clashfern, and to which I readily added my name. With his vast and rightly respected experience, he considered that the Secretary of State should have a statutory duty of due regard for veteran affairs. The telling example of Gulf War syndrome was mentioned. Noble Lords will recall that the Government of the day were reluctant to see or treat this issue with the seriousness it seemed to deserve. It affected a considerable number of service and ex-service personnel who had served in Operation Granby in the first Gulf War of 1991.
A number of noble Lords, dismayed by the Government’s decisions just to set up further studies, arranged an independent inquiry chaired pro bono by a distinguished Law Lord, Lord Lloyd of Berwick. He conducted a fair and exhaustive inquiry to which I, as Chief of the Defence Staff during the conflict, gave evidence. But no Government Minister was prepared to be interviewed, or even to attend any of the hearings. That was an example of impact on veterans that was not solvable at local level.
At Report, I quoted another example, that of the veterans of the Hong Kong Military Service Corps, whose long-outstanding case also could not be resolved at devolved or local-authority level. I understand that the MoD has passed this case back to the Home Office, but I hope that the MoD still sees it as a veteran case that deserves its continued interest and a responsibility to see it finally settled. It would be most unsatisfactory, when dealing with the concerns of veterans, for the MoD and the Secretary of State not to continue to be seen to be actively supportive of their veterans. A statutory requirement for the Secretary of State to pay due regard and be seen to discharge a duty of care for veterans seems more important than  ever. Serving personnel, soon to be veterans, may well have been involved in live operations that, more than ever, are subject to active ministerial oversight and even direction. Looking to the future, assuming the media reports of hearing damage to soldiers testing the Ajax AFV to be true, this could become a veteran issue—an issue that needs a duty of care for all the veterans as a group, not just individually, where there might inevitably be differing outcomes causing lasting resentment.
This amendment therefore gives the Secretary of State time to consider his responsibility further and report to Parliament. As the amendment spells out, it requires the Secretary of State to detail
“the implications of not applying the same legal responsibility to have ‘due regard’ under the Armed Forces Covenant to central government as the Act requires of local authorities and other public bodies.”
It has been argued that the Secretary of State believes that he and central government already bear this responsibility. Why, then, is there this reluctance to spell it out closely in statute?
The Minister in the other place made the particular point that, because the Secretary of State makes a report to Parliament annually, he is fully discharging his duty of care for veterans. But it is not just a moral duty; the Armed Forces Act 2011 made reporting annually a statutory requirement, so it seems to follow that “due regard to” should be enacted; otherwise, the statutory responsibility is confined just to reporting.
The Minister in the other place said that,
“responsibility for the actual delivery of nuts-and-bolts frontline services and their impact … rests at local level”.—[Official Report, Commons, 6/12/21; col. 99.]
He made no mention of the heart of your Lordships’ case, that there were some issues that could not be dealt with at local level. Why was this not considered? All he said was that the inclusion of central government was simply unnecessary; he did not explain why. As I have just mentioned, the MoD has passed the case that I cited on Report of the Hong Kong veteran to the Home Office; one central department having due regard has passed it directly to another. I rest my case.

Lord Thomas of Cwmgiedd: My Lords, I entirely support what the noble and gallant Lord, Lord Craig of Radley, has just said, but I want to add a word on Motion A1. It is clear that the overwhelming majority of people with real experience of the criminal and military justice systems support that Motion A1. The Minister is quite right: the service justice system has improved enormously over the past few years, but there is a fundamental respect in which it is different—that is, that there is no trial by jury. Trial by jury is the essence of our system. It gives confidence to the victims, which is critical in the very serious crimes that we are considering, and it is a fundamental right of the defendant. We should not do anything to take those rights away or to undermine confidence; that is the fallacy in the Minister’s argument.

Lord Alton of Liverpool: My Lords, I intervene briefly to support the amendments in the name of the noble Lord, Lord Thomas of Gresford, so ably supported by the noble and learned Lord, Lord Morris, the noble  Lord, Lord Burnett, and my noble and learned friend. I have nothing usefully to add to what has been said by them in the context of Motion A1. They are huge authorities on this matter, and the House is right therefore to support them again and ask another place to think once more on that question.
I rise to support my noble and gallant friend Lord Craig of Radley on Motion B1, especially having spoken on this matter when we last considered it. He is right that some things cannot be settled at local level—and I say that as someone who has served in local government. Some things need to be settled centrally, and that should be spelled out in the Bill; that is so. He has made a compelling case as to why there should be some further consideration given to the duties that we have towards our armed servicemen and who has to implement those duties, specifically in the case of the Hong Kong ex-servicemen that was given as a very good example during Report and again by my noble and gallant friend.
The Minister has taken a great interest in this matter and knows that it concerns a very small number of people and that it is on a par with how we rightly dealt with the issue of the Gurkhas. We should do the same for these servants of the Crown, not least because of the developments in Hong Kong, where we have seen the destruction of democracy. Who would be more at risk than people who have served in our Armed Forces in Hong Kong?
If the noble Baroness cannot accept the amendment today and if it does not go back to another place, we will quite soon have before us the Nationality and Borders Bill. If she can do nothing else, she has heard what my noble and gallant friend has said about how this has now been referred back to the Home Office, which will have responsibility for that Bill. When the noble Baroness, Lady Goldie, replies for the Government tonight, she will have the opportunity to say to us whether included within the provisions of that Bill will be, as was reported in the media earlier this week, the possibility that this glaring oversight and injustice will be rectified in the course of that legislation. I hope that she will take the opportunity when she comes to reply to say whether that is being seriously considered by the Government and whether she is able to allay some of our concerns, at least on that count.

Baroness Smith of Newnham: My Lords, I rise to support both Motion A1 in the name of my noble friend Lord Thomas of Gresford and Motion B1 in the name of the noble and gallant Lord, Lord Craig of Radley.
As the noble Lord, Lord Alton of Liverpool, just pointed out, several noble and learned Lords and noble and gallant Lords have already articulated the case for Motion A1 very cogently. I do not propose to speak to that in any detail, because they have already made the case, as did the Member for Wrexham, Sarah Atherton, in the other place.
If there was only one Minister who was keen to keep service justice the way it is and for issues of murder, manslaughter, domestic violence, and so on, to be kept in the courts martial system, that suggests, as my noble friend Lord Thomas of Gresford pointed  out, that the Minister perhaps does not share the same views as the Secretary of State. Clearly, it is not the job of your Lordships’ House to persuade the Minister to come clean on her personal view; she is clearly speaking for the Government. However, if there is perhaps some difference of opinion within the MoD, might it be possible for the Minister to think again and for her to persuade Members of the other place to think again? The cases that have been put forward—the words of Johnny Mercer MP and the report brought forward by the Defence Committee of the House of Commons—are compelling.
I suggest that Motion B1 is in some way superior to what the Government are asking us not to agree with—that we do not go with the amendment that we voted on and approved on Report. At that stage, the amendment just talked about the Secretary of State, but that is slightly ambiguous. Which Secretary of State? The assumption implicit in that amendment was that it was the Secretary of State for Defence. However, on Report, the noble Viscount, Lord Brookeborough, pointed out that the situation was vital in Northern Ireland, and there it would not be necessarily be the Secretary of State for Defence that mattered so much as the Secretary of State for Northern Ireland. The new amendment makes clear the import of what we had intended in the first place, all the way back at Second Reading and in Committee, that central government should be brought within the purview of the Bill.
The Minister says that this is about ensuring that key policymakers have the right information. She seemed to imply that this related only to local government, housing associations, local health providers—that is, people providing health, education and welfare support that come under the Bill. But surely that relates also to central government. In particular, it relates to all parts of central government. It does not just relate to the Secretary of State for Defence, particularly if he is caught up some blind alley. It also relates to the Home Secretary. We have already heard about some aspects of what might appear to be issues related to the military being passed over to the Home Office. Surely it is not adequate for the Secretary of State for Defence to report annually to the other place if what we need is the Home Secretary to bear in mind the needs of veterans and service personnel, particularly those who served in Hong Kong, or maybe the Gurkhas.
There is a need for the Bill to apply to central government as well as to local government and other authorities. I urge the House to support Motion B1 as well as Motion A1.

Lord Coaker: My Lords, I support Amendments A1 and B1. I will not go into the legal arguments around Amendment A1: the noble Lord, Lord Thomas of Gresford, the noble and learned Lord, Lord Thomas of Cwmgiedd, and others have spoken about many of the legal reasons why this would be an improvement, and we wish the Government to think again on it. I say to the Chamber that review after review has said to the Government that the civilianisation of murder, manslaughter, rape and these charges would be of immense benefit. It is review after review after review; not just one review and then another review says something different, but review after review after review.
In what I thought were devasting comments in the other place—as the noble Lord, Lord Thomas of Gresford, pointed out—the Minister responsible for the delivery of these policies agreed with the amendment that was put. You sometimes wonder what parallel universe you live in when all the evidence and all the points put forward support the amendment, only for it to be resisted by the Government. I ask the Minister—who frankly even in her remarks today went further than she has in some of our other debates—to reflect on that. The reviews and now Johnny Mercer MP in the other place say that as well.
Can the Minister clarify the statistics for us? The statistics quoted by Johnny Mercer were 16% but, as the noble Lord, Lord Thomas, pointed out, the Minister quoted a much different figure. I think it was around 50%—to be fair, I cannot remember the exact figure. I think we would all be interested in this House in how that figure was arrived at, what the sample size was, and what length of time it was done over. This is an important amendment. I am very pleased to support Amendment A1, as outlined by the noble Lord, Lord Thomas of Gresford.
I ask the Minister: is there is any update on where we have got to with the defence-wide strategy for dealing with rape and serious sexual offences within the service justice system? Is there any further news about when we can expect that?
I also want to briefly say something about this. I say this as my last comment on these issues around the service justice system. Significant numbers of cases continue to be raised by Sarah Atherton and by many of the other members who continue to serve. We read about it in our newspapers. We need to reflect on the fact that case after case is brought forward. This would be a way for the Government to restore confidence in the system and in the way that these issues are dealt with.
In supporting the amendment from the noble and gallant Lord, Lord Craig of Radley, I point out to the Chamber that again this is something that the Royal British Legion sees as of immense importance and that needs to be done. It is something that would improve the situation.
Just recently, on 6 December, the Government published the draft statutory guidance for the covenant. It lists the responsibilities on healthcare authorities, the responsibilities on local authorities, the responsibilities on every single public body you could virtually think of except the Government themselves. I say to the Minister that I have never been convinced in any shape or form that the people of this country would believe that a covenant between the state and the people would exclude the national Government. I just do not believe that people, whatever the rights and wrongs of it, would understand that. The perception of it, apart from anything else, is something that undermines that.
I appreciate what the Government have done in the Bill in terms of placing a legal duty on everyone, but I wonder why it places a legal duty on everyone but the national Government themselves and I ask the Government to think again on that.

Baroness Goldie: My Lords, first, I thank your Lordships for, as ever, interesting and thoughtful contributions on both issues being debated this afternoon, particularly Motions A1 and B1. I will first address the comments made in relation to Motion A1. By way of preface, it is worth noting that this matter was debated and decided in the other place by an authoritative and substantial majority. Notwithstanding that, I will endeavour in my remarks to engage your Lordships and repeat why the Government hold to the position they do. I am grateful for the further comments made.
Perhaps I should clarify to the noble Lord, Lord Thomas, who seemed to doubt my commitment to the matters of the service justice system, that I and the Government are convinced of the wisdom of retaining unqualified concurrent jurisdiction for murder, manslaughter and rape—I want to make that crystal clear. I remind your Lordships that, contrary to what some contributions indicated, that view is supported by a distinguished former High Court judge, Sir Richard Henriques.
I was also interested to note that remarks from a number of your Lordships with very senior and impressive legal backgrounds seemed to be addressed exclusively to England and Wales. With all respect, the service justice system that we all admire and revere has to extend across the whole of the UK and must reflect the different systems within it. Military justice must be universal across the UK and the proposal in the Bill achieves that end in a way in which the noble Lord’s amendment does not.

Lord Thomas of Gresford: Perhaps I might challenge the Minister on that. If the civil jurisdiction is to be used for an offence committed in Scotland or Northern Ireland, court martials then become immaterial—so there is no problem, as the Minister seems to think. This point has not been raised at any stage of the Bill until today. There is no problem if the ordinary courts of Scotland and Northern Ireland are to deal with offences which occur within that jurisdiction. The question of whether a person is in the military or not is then irrelevant; the offences will be dealt with as usual.

Baroness Goldie: Yes, but with all respect, I say to the noble Lord that that is not the essence of the issue. The essence is instead how you create a service justice system which can operate across the United Kingdom and ensure that, when discussions take place with the appropriate civilian prosecutors, appropriate decisions are reached on the correct jurisdiction for the case. That might be, within the service justice system, convening in Scotland, but under the noble Lord’s amendment there is clearly a desire to bias the whole service justice system in respect of England and Wales to the civilian system, and I am saying that that introduces a disparity or fracture of the United Kingdom service justice system. That is what the Government find unacceptable.
The noble Lord, Lord Burnett, raised an important point—

Lord Morris of Aberavon: If there is any technical difficulty regarding the extension of the jurisdiction to include Northern Ireland and Scotland,  surely it would not be beyond the wit of the Government, if they accepted the principle of civilianisation, to deal with that matter in an appropriate way.

Baroness Goldie: I say to the noble and learned Lord that, as I understand it, the difficulty is that constitutionally we cannot extend this amendment to cover Scotland and Northern Ireland. That gets right to the heart of whether we have a service justice system for the United Kingdom, operating across it, or we do not. That is the difficulty with this amendment.
Turning to the point made by the noble Lord, Lord Burnett, on the Richard Henriques recommendations, I know he was particularly interested in a defence representation unit. In recognition of the remarks I made in Grand Committee when I undertook to keep the House informed of progress on these Henriques matters, I explained then and when the amendment was tabled on Report that we have to analyse and assess these recommendations. We are not yet sure how they could be implemented and what measures would be necessary to implement them, but I am very happy to repeat my assurance to the noble Lord that I will keep the Chamber informed of progress.
I can add very little more on this issue in Motion A1. The Government’s position is clear; I have explained why we hold it. I accept that a number of your Lordships disagree but, in support of what we are doing, I think the view of a former High Court judge such as Sir Richard Henriques ought to carry some weight and deserves some attention.
The noble Lord, Lord Coaker, raised the defence-wide strategy in respect of serious sexual crimes and offences. My colleague the Minister for Defence People and Veterans is taking that forward with purpose and resolve. I will find out the timetable and undertake to write to the noble Lord.
Returning to Motion B1 in the name of the noble and gallant Lord, Lord Craig, I thank noble Lords for their contributions. I remind the House that this issue was debated and decided authoritatively in the other place by a substantial majority, but I have endeavoured in my initial speech and my remarks just now to explain why we want the new covenant obligations. After all, what is currently happening in the Bill—improving the covenant and giving parts of it legal effect—is all down to the Government’s commitment to the covenant and desire to support our service personnel and veterans with reference, as I explained at an earlier stage of proceedings, to what our service personnel want. They are the people we have listened to and they identified the three specific functions in the Bill of housing, health and education. As I said, the covenant is not a legal obligation per se but a concept. That is why we have had to use a statutory measure to start applying it in a legal context to particular areas of public service delivery.
The reason why the Government do not wish to expand that at the moment is not due to some sinister, covert or malign purpose. We want to see how this works in practice—let the measures bed down, assess them and see how they work. Very importantly, if some feature is not working, we want to identify it and  what we do about it. That is a sensible, practical way forward before proceeding with any further enlargement of the legal duty.
That is the Government’s position. I accept that a number of your Lordships do not agree with it, but that is why we are proceeding as we are. I think noble Lords would accept that, overall, the Armed Forces Bill is a very important measure, not just for the legal constitution of our Armed Forces before the end of this year but—

Lord Craig of Radley: Before the Minister sits down, the big issue that came from this House is where local authorities cannot deal with the veteran issue. We produced some examples of that; it was not discussed at all in the other place. Could she explain why? This is not acceptable at this stage, bearing in mind that, in effect, it is already being carried out. I do not see why there should be any difficulty in incorporating the Secretary of State “having due regard” as the form of words, to show that it is a matter for central government. The veteran issue cannot be dealt with at local level.

Baroness Goldie: Central government, as I have indicated previously, is bound by a wide spectrum of obligations. Some of these obligations exist because of parliamentary and government obligations, some exist because the MoD is an employer of the Armed Forces, and some exist because, under the covenant—which is a concept, as I have said—we want to do the best we can.
What I did explain was that to make this work—I hope it is clear from the text of the Bill in relation to the three functions we have identified—you need to have an identified body and detailed functions. That is why the Government feel that it is premature to take this step at this time. I appreciate that the noble and gallant Lord disagrees with that interpretation. He feels that the Government should absolutely accept that they are bound under the covenant. I would say that they are bound under the covenant as a concept in terms of a moral responsibility, and they are certainly accountable not just to Parliament, as they rightly should be, but to their own Armed Forces and to their veterans, and to public opinion.
I have tried to explain why we feel that to take this step at this stage is both precipitate and premature. I appreciate that there is not agreement on that view, and that is what democracy exists to serve. But I have endeavoured to explain to your Lordships the position of the Government and why they hold to their views in these circumstances. Again, I respectfully ask the noble Lords to withdraw their Motions A1 and B1.

Lord Morris of Aberavon: Before the Minister sits down—I hope she will forgive me—I asked specifically about the size of the sample for rape cases, an issue which my noble friend Lord Coaker also raised. The figures are quite different and much more encouraging than those given by Mr Johnny Mercer in the other place. Can the Minister tell me—I did give notice of this in the course of my short remarks—what is the size of the sample?

Baroness Goldie: I have to say to the noble and learned Lord that I am afraid I do not have information available. I gave him the statistics provided to me, but I will undertake to ascertain that information and write to him.

Lord Thomas of Gresford: My Lords, I will pursue that for a moment. The number of cases heard in courts martial is probably fewer than 10 for sexual offences, or at least fewer than 20. I cannot imagine that in six months, we deal with more than four or five cases, but no doubt we will be told in due course. Over a five-year period, the figure is 16% for convictions, as opposed to the civil conviction rate of 34%—shocking as that conviction rate is in any event.
On the point about Scotland and Northern Ireland—never raised before Monday night in the course of this Bill, either here or in the other place—the principle that this amendment sets down is quite simple:
“Guidance … must provide that where offences of murder, manslaughter, domestic violence, child abuse, rape or sexual assault with penetration are alleged to have been committed in the United Kingdom, any charges brought against a person subject to service law shall normally be tried in a civilian court”—
it does not say “in the Crown Court” in this country—
“unless by reason of the circumstances … the Director of Public Prosecutions, after consultation with the Attorney General, directs trial by court martial.”
If it is necessary to cover that by putting “after consultation with the Lord Advocate in Scotland” or whoever is the chief authority in Northern Ireland, that can be done in 30 seconds—if you let me loose for that period of time.
No answer has been given, and we are faced with what Johnny Mercer said:
“there is one individual who is refusing to back down from the alleyway”.—[Official Report, Commons, 6/12/21; col. 105.]
This is not proper policy for the Conservative Party. It will face, as a party, the complaints of people who have been subjected to sexual violence but whose cases have not been upheld. It will arise, and it will be to the advantage of other parties. So, I plead that the amendment be supported in this case. I beg to move.
Ayes 205, Noes 183.

Amendment A1 agreed.

Motion B

Baroness Goldie: Moved by Baroness Goldie
That this House do not insist on its Amendment 2, to which the Commons have disagreed for their Reason 2A.
2A: Because the Commons do not consider the addition of the Secretary of State as a specified person to be necessary to address any disparity in the delivery of core services across the United Kingdom, or otherwise to achieve the aims of the Bill.

Baroness Goldie: I beg to move.

Motion B1 (as an amendment to Motion B)

Lord Craig of Radley: Moved by Lord Craig of Radley
At end insert “, and do propose Amendment 2B in lieu—
2B: Page 18, line 28, at end insert—“343AG Section 343AF: reportThe Secretary of State must lay a report before each House of Parliament no later than six months after the day on which the Armed Forces Act 2021 is passed detailing the implications of not applying the same legal responsibility to have “due regard” under the Armed Forces Covenant to central government as the Act requires of local authorities and other public bodies.””

Lord Craig of Radley: I beg to move.

Lord Duncan of Springbank: The Question is that Motion B1 be agreed to. I am content to have an electronic Division to settle this. I instruct the clerks to plug in the machine.
Ayes 215, Noes 173.

Motion B1 agreed.

Police, Crime, Sentencing and Courts Bill
 - Report (1st Day)

Amendment 1

Lord Wolfson of Tredegar: Moved by Lord Wolfson of Tredegar
1: After Clause 2, insert the following new Clause—“Required life sentence for manslaughter of emergency worker(1) The Sentencing Code is amended in accordance with subsections (2) to (15).  (2) In section 177 (youth rehabilitation orders), in subsection (3)(b)(i), after “258” insert “or 258A”.(3) In section 221 (overview of Part 10), in subsection (2)(b), for “section 258” substitute “sections 258 and 258A”.(4) In section 249 (sentence of detention under section 250), in subsection (2)(a), for “section 258” substitute “sections 258 and 258A”.(5) In section 255 (extended sentence of detention), in subsection (1)(d), after “258(2)” insert “or 258A(2)”.(6) After section 258 insert—“258A Required sentence of detention for life for manslaughter of emergency worker(1) This section applies where—(a) a person aged under 18 is convicted of a relevant offence,(b) the offence was committed—(i) when the person was aged 16 or over, and(ii) on or after the relevant commencement date, and(c) the offence was committed against an emergency worker acting in the exercise of functions as such a worker.(2) The court must impose a sentence of detention for life under section 250 unless the court is of the opinion that there are exceptional circumstances which—(a) relate to the offence or the offender, and(b) justify not doing so.(3) For the purposes of subsection (1)(c) the circumstances in which an offence is to be taken as committed against a person acting in the exercise of functions as an emergency worker include circumstances where the offence takes place at a time when the person is not at work but is carrying out functions which, if done in work time, would have been in the exercise of functions as an emergency worker.(4) In this section “relevant offence” means the offence of manslaughter, but does not include—(a) manslaughter by gross negligence, or(b) manslaughter mentioned in section 2(3) or 4(1) of the Homicide Act 1957 or section 54(7) of the Coroners and Justice Act 2009 (partial defences to murder).(5) In this section—“emergency worker” has the meaning given by section 68;“relevant commencement date” means the date on which section (Required life sentence for manslaughter of emergency worker) of the Police, Crime, Sentencing and Courts Act 2021 (required life sentence for manslaughter of emergency worker) comes into force.(6) An offence the sentence for which is imposed under this section is not to be regarded as an offence the sentence for which is fixed by law.(7) Where an offence is found to have been committed over a period of 2 or more days, or at some time during a period of 2 or more days, it must be taken for the purposes of subsection (1)(b) to have been committed on the last of those days.”(7) In section 267 (extended sentence of detention in a young offender institution), in subsection (1)(d), for “or 274” substitute “, 274 or 274A”.(8) In section 272 (offences other than murder), in subsection (2)(b), for “or 274” substitute “, 274 or 274A”.(9) After section 274 insert—“274A Required sentence of custody for life for manslaughter of emergency worker(1) This section applies where—  (a) a person aged 18 or over but under 21 is convicted of a relevant offence,(b) the offence was committed—(i) when the person was aged 16 or over, and(ii) on or after the relevant commencement date, and(c) the offence was committed against an emergency worker acting in the exercise of functions as such a worker.(2) The court must impose a sentence of custody for life under section 272 unless the court is of the opinion that there are exceptional circumstances which—(a) relate to the offence or the offender, and(b) justify not doing so.(3) For the purposes of subsection (1)(c) the circumstances in which an offence is to be taken as committed against a person acting in the exercise of functions as an emergency worker include circumstances where the offence takes place at a time when the person is not at work but is carrying out functions which, if done in work time, would have been in the exercise of functions as an emergency worker.(4) In this section “relevant offence” means the offence of manslaughter, but does not include—(a) manslaughter by gross negligence, or(b) manslaughter mentioned in section 2(3) or 4(1) of the Homicide Act 1957 or section 54(7) of the Coroners and Justice Act 2009 (partial defences to murder).(5) In this section—“emergency worker” has the meaning given by section 68;“relevant commencement date” means the date on which section (Required life sentence for manslaughter of emergency worker) of the Police, Crime, Sentencing and Courts Act 2021 (required life sentence for manslaughter of emergency worker) comes into force.(6) An offence the sentence for which is imposed under this section is not to be regarded as an offence the sentence for which is fixed by law.(7) Where an offence is found to have been committed over a period of 2 or more days, or at some time during a period of 2 or more days, it must be taken for the purposes of subsection (1)(b) to have been committed on the last of those days.”(10) In section 280 (extended sentence of imprisonment), in subsection (1)(d), for “or 285” substitute “, 285 or 285A”.(11) After section 285 insert—“285A Required life sentence for manslaughter of emergency worker(1) This section applies where—(a) a person aged 21 or over is convicted of a relevant offence,(b) the offence was committed—(i) when the person was aged 16 or over, and(ii) on or after the relevant commencement date, and(c) the offence was committed against an emergency worker acting in the exercise of functions as such a worker.(2) The court must impose a sentence of imprisonment for life unless the court is of the opinion that there are exceptional circumstances which—(a) relate to the offence or the offender, and(b) justify not doing so.(3) For the purposes of subsection (1)(c) the circumstances in which an offence is to be taken as committed against a person acting in the exercise of functions  as an emergency worker include circumstances where the offence takes place at a time when the person is not at work but is carrying out functions which, if done in work time, would have been in the exercise of functions as an emergency worker.(4) In this section “relevant offence” means the offence of manslaughter, but does not include—(a) manslaughter by gross negligence, or(b) manslaughter mentioned in section 2(3) or 4(1) of the Homicide Act 1957 or section 54(7) of the Coroners and Justice Act 2009 (partial defences to murder).(5) In this section—“emergency worker” has the meaning given by section 68;“relevant commencement date” means the date on which section (Required life sentence for manslaughter of emergency worker) of the Police, Crime, Sentencing and Courts Act 2021 (required life sentence for manslaughter of emergency worker) comes into force.(6) An offence the sentence for which is imposed under this section is not to be regarded as an offence the sentence for which is fixed by law.(7) Where an offence is found to have been committed over a period of 2 or more days, or at some time during a period of 2 or more days, it must be taken for the purposes of subsection (1)(b) to have been committed on the last of those days.”(12) In section 329 (conversion of sentence of detention to sentence of imprisonment), in subsection (7)(a), after “258” insert “or 258A”.(13) In section 399 (mandatory sentences), in paragraph (b)(i)—(a) for “258, 274 or 285” substitute “258, 258A, 274, 274A, 285 or 285A”;(b) omit “dangerous”.(14) In section 417 (commencement of Schedule 22), in subsection (3)(d), for “and 274” substitute “, 274 and 274A”.(15) In Schedule 22 (amendments of the Sentencing Code etc)—(a) after paragraph 59 insert—“59A_ In section 285A (required life sentence for manslaughter of emergency worker), in subsection (1)(a), for “21” substitute “18”.”;(b) in paragraph 73(a)(ii), after “274” insert “, 274A”;(c) in paragraph 101(2), after “274,” insert “274A,”.(16) In section 37 of the Mental Health Act 1983 (powers of courts to order hospital admission or guardianship)—(a) in subsection (1A)—(i) after “258,” insert “258A,”;(ii) after “274,” insert “274A,”;(iii) for “or 285” substitute “, 285 or 285A”;(b) in subsection (1B)—(i) in paragraph (a), after “258” insert “or 258A”;(ii) in paragraph (b), for “or 274” substitute “, 274 or 274A”;(iii) in paragraph (c), for “or 285” substitute “, 285 or 285A”.”Member’s explanatory statementThis amendment inserts into the Sentencing Code provisions that require a court to impose a life sentence on an offender who is convicted of unlawful and dangerous act manslaughter against an emergency worker acting in the exercise of their functions as an emergency worker.

Lord Wolfson of Tredegar: My Lords, it is my pleasure to open the debate on the Report stage of this Bill. I stand to add the proposed new clause, after Clause 2, as printed on the Marshalled List.
This amendment, known as Harper’s law, will impose mandatory life terms on those who are convicted of unlawful act manslaughter, where the victim is an emergency worker who is acting in the exercise of their functions as such a worker. The amendment will apply to adult offenders, and to 16 and 17 year-olds. As the House will see, it contains a judicial discretion for the court to impose an alternative sentence in exceptional circumstances.
It may assist noble Lords if I provide a brief overview of manslaughter—I do not propose to turn this into a lecture—and the manner in which this amendment will work. The amendment applies to those convicted of manslaughter, but the proposed new Sections 258A(4), 274A(4) and 285A(4) of the Sentencing Code are provisions to explicitly exclude those convicted of gross negligence manslaughter, as well as those convicted of manslaughter following a successful partial defence to a charge of murder—for example, manslaughter by reason of diminished responsibility, loss of control or in pursuance of a suicide pact. As a result and by process of statutory elimination, the provisions will apply only to those who have been convicted of manslaughter by an unlawful and dangerous act, more commonly referred to as “unlawful act manslaughter”.
The Government are making this amendment following the death of PC Andrew Harper in August 2019. I am sure the House is familiar with the horrific facts of that case. PC Harper was responding to reports of the attempted theft of a quad bike. He suffered fatal injuries when he became caught in a strap trailing behind a getaway car and was dragged behind it. At their trial in July 2020, PC Harper’s three killers were acquitted of murder but were all convicted of unlawful act manslaughter.
The jury was therefore satisfied that the unlawful and dangerous actions of the defendants, namely the plan to steal the quad bike and then escape apprehension by whatever means possible, including driving dangerously along winding country roads, amounted to manslaughter. The court did not impose life sentences on any of the defendants. Each received sentences of between 13 and 19 years for the manslaughter of PC Harper, sentences that were subsequently upheld by the Court of Appeal. They will therefore all be incarcerated for a significant period. But the Government believe that, where a person is convicted of unlawful act manslaughter, and the person who has been killed is an emergency worker acting as such, that should be punished with life imprisonment.
The court will be able to impose a different sentence where there are exceptional circumstances. As covered in Committee, that term is already used in law and is deliberately undefined in legislation to allow for interpretation and application by the court. This will ensure that the court can apply a different sentence where justified, such as where there are exceptional circumstances relating either to the offence or the offender.
The successful campaign of PC Harper’s widow Lissie Harper and the Police Federation drew this issue to the Government’s attention, but this was not an isolated incident. While, thankfully, emergency workers are not often killed on duty, they are required to put themselves at particular risk when carrying out their duties and protecting the public. As is often said, they run towards the danger when others run away from it. I therefore beg to move Amendment 1.

Viscount Hailsham: I rise to express my grave concerns about this new clause, which I hope will not be enacted, although I am bound to say that I am rather pessimistic about that.
I will begin by saying something about procedure. I regret that this new clause is being brought forward on Report. The formal announcement of it was by way of a press release on 24 November this year. As the Minister has said, the new clause was triggered by the very distressing case of the killing of PC Harper. We need to keep in mind that the relevant trial took place in July 2020, and it came before the Court of Appeal for consideration in December that year. I suggest that it is hard to see why the new clause could not have been introduced in the House of Commons or, if that were not possible, in Committee in this House. In either event, there would have been a greater opportunity for discussion, both inside and outside Parliament.
All of us will have the greatest sympathy for PC Harper’s wife and family. However, we should be very cautious about legislating as a consequence of a single case or even a number of cases, however distressing they may be. I have referred to the trial in 2020 and the decision of the Court of Appeal in December that year. My noble friend referred specifically to them. In both those cases, very serious and detailed consideration was given to the appropriate sentence, and, as my noble friend has said, the Court of Appeal rejected the submission of the Attorney-General that, in the case of the defendant Long—the most culpable of them—the sentence should be increased to a life sentence.
I suggest that anyone who studies the judgments of the courts, together with the guidelines of the Sentencing Council—the relevant ones were published as recently as November 2018—will be satisfied that the existing law makes proper provision for the punishment of offenders convicted of serious offences of manslaughter and gives proper protection to emergency workers.
As your Lordships will know, manslaughter covers a very broad spectrum of culpability, extending from the very serious—the killing of PC Harper is an example of this—to many things that are very much less serious, such as a single blow that fells an individual, who strikes his head on the pavement and dies. In all conscience, that is an act of common assault, although the consequences are dreadful.
In the case of PC Harper, the trial judge stated that, had the defendant Long been a few years older— he was 19 at the time of the trial and 18 at the time of his offence—he would probably have been given a life sentence. So we need to be clear about this. A life sentence is already available for serious cases of manslaughter, where the trial judge, who has heard all the relevant facts, thinks that such a sentence is appropriate.  Your Lordships are being asked to approve a mandatory life sentence in circumstances in which the trial judge might otherwise determine that one is not appropriate. I am deeply uncomfortable with that, especially when I consider the broad spectrum of culpability that arises in manslaughter cases.
Consider a police officer who intervenes in a street brawl, in or out of uniform—it might be a plain-clothes officer. The officer is struck by a single blow or trips in the course of a scuffle. He or she falls, hits their head on the pavement and dies. If the deceased person had been a civilian killed in such circumstances, the court would impose a relatively modest determinate sentence, but, in the case of the police officer and subject to the subsection (2) provisos, which I will shortly mention, the court would have to impose a life sentence. I do not believe that that can be right.
I said that I would speak briefly, if your Lordships would allow me, to proposed new subsection (2), which was briefly referred to my noble friend the Minister. Subsection (2) refers to the exceptional circumstances that relate to the offence or the offender and make it just not to impose a life sentence. The question that arises and must be considered is: what does that mean? Does that mean that, if the judge thinks that the offence falls at the lower level of culpability, a modest determinate sentence can properly be imposed? If that is the case, what is the purpose of the new clause? If such a discretion is not available to the trial judge, it is surely inevitable that injustice will happen on occasions.
At that point, we come to a related matter. We are talking here about not “whole life” cases but life-sentence cases in which a trial judge must impose a custodial tariff. Is the trial judge entitled under these provisions to set a modest determinate tariff in order to address a low level of culpability? If that is the case, what is the point of the new clause? If it is not the case and the trial judge may not impose a modest tariff, it is extremely unjust.
I have one final point, and I acknowledge that it is about drafting. Consider the following circumstances, which fall within proposed new subsection (3)—I will not read it out because it is on the Marshalled List and I do not want to detain your Lordships’ House. An off-duty officer in plain clothes, whose identity as a police officer is not apparent, intervenes in a street brawl or seeks to apprehend a fleeing thief. In the scuffle, he or she falls over, hits their head and dies. Is it right that, in those circumstances, such a defendant should automatically face a life sentence, unless the subsection (2) provisos apply?
I am profoundly uncomfortable with this new clause, and I would like to think that it will not pass.

Baroness Butler-Sloss: My Lords, I share the serious concerns of the noble Viscount. Given the degree of pressure that the Government have been under, understandably, after the shocking death of the police officer, they may have strayed too far into imposing upon the judiciary something that is not necessary, in my view. If they remain concerned about the extent to which the Sentencing Council may not have properly reflected the seriousness of an emergency  officer being killed, it is perfectly simple to ask it to reconsider this. I suspect that, in the light of PC Harper, it might well do so.
Following what the noble Viscount has just said, I am particularly concerned about the off-duty, plain-clothes police officer, fireman or anybody else who intervenes—very properly, feeling it is his or her duty—and suffers a fatal injury. The situation is as the noble Viscount said: it really does go too far. I understand very well why the Government think it needs to be done, but I wish they would reflect on this, and think again before it goes back to the House of Commons.

Baroness Fox of Buckley: My Lords, I cannot speak as eloquently as the speakers we have just heard, but I want to say that this feels so much like law made by press release, and law made to virtue-signal, that I feel incredibly uncomfortable about it.
We want to say to emergency workers that we will protect them if they are at risk, but we know that the emergency worker in this instance, PC Harper, was not the target of the crime; it was not intentional to kill an emergency worker. So I do not see even how this operates as a deterrent, because it is not aimed at people who have put those emergency workers at risk, even though those workers have accidentally been killed in the pursuit of a criminal act that is, I accept, dangerous.
There is an exception, which is that the trial judge can make an alternative sentence in “exceptional circumstances”. But, as has been pointed out, the trial judge can already make an alternative sentence—a full life sentence in some circumstances—so why emphasise it, unless it is a political policy statement? It is not a matter of law; it is a question of saying, “We will be hard”, and it will inevitably lead to great injustice. The fact that 16 and 17 year-olds have been included means that very young people could now have mandatory life sentences for manslaughter, with no discretion, and no discretion encouraged. It is so wrong and brought in for all the wrong reasons.

Lord Beith: My Lords, I share many of the reservations expressed already and the analysis given on both the provision and the circumstances which have led to it. I ask the Minister, in his response to the debate, to deal with one of the points raised by the noble Viscount, which is the discretion that might be available to the judge in deciding what tariff accompanies the sentence, as opposed to the provisions of proposed new subsection (2), which give slightly more power—I refrain from defining it as a wider power—in exceptional circumstances to the judge to impose a different sentence altogether.
One thing the Minister did not cover in his helpful introduction was the extent to which the tariff provisions interact with this. I would be grateful if he could explain that, in case he can give us any reassurance about what seems to be the danger of making general law out of a particular case.

Lord Pannick: My Lords, if I may, I will add a point that follows on from what the noble Lord, Lord Beith, said. To require a life sentence is pure deception  because we all know that life sentences are not life sentences, and there is a strong feeling that the life sentence for murder is a deception. Other than in the most exceptional circumstances, the person concerned will be released, and the judge pronounces, in open court, a tariff. I entirely understand why the Government wish to give comfort to the unfortunate relatives and friends of those heroic emergency workers who suffer this appalling treatment and die in service of the country, but it is a gesture—a misleading gesture. We really should not be perpetuating more and more life sentences when the reality is that people receive a term of years.

Earl Attlee: My Lords, arguing this case is far beyond my pay grade, but I support everything that my noble friend Lord Hailsham said in opposition to these amendments. I do not support Amendment 1.

Baroness Hamwee: My Lords, we have more and more life sentences and less and less judicial discretion. The point made by the noble Baroness, Lady Fox, that deterrence is not a factor in this really should not be glossed over; it is very important.

Lord Carlile of Berriew: My Lords, I am puzzled by the mechanism that the Government are trying to use to increase sentences, which, in some cases, should rightly be higher, in relation to the deaths of emergency workers. After a long period of development, we created a completely new mechanism: the Sentencing Council. Judges must have regard to sentencing guidelines in every case, and those guidelines are complex. They give examples of levels at which sentences should start in certain circumstances.
I see a number of noble Lords around this Chamber who have either acted as police officers or have prosecuted and defended manslaughter cases. In my case, I have done, on one side or the other, a number of one-punch manslaughter cases, in which there was a conviction, and perhaps a sentence of three or four years’ imprisonment. One can imagine circumstances in which that could have arisen where the person who died was an off-duty emergency worker trying to help someone, and the perpetrator of the offence had no idea that that person was an emergency worker.
Surely the better mechanism is to use the flexible, living instrument of the Sentencing Council, and the sentencing guidelines, and not to inhibit the discretion of judges. The Sentencing Council and the judges will, of course, respond to the pressure that rightly arises from the awful case that has given rise to this discussion and this amendment. With great respect to the Minister, relying on “exceptional circumstances”, a description that is always determined in a restrictive way—rightly so—by the Court of Appeal, seems to be the wrong mechanism to achieve the right result.

Lord Marks of Henley-on-Thames: My Lords, on these Benches we share the shock and revulsion at the death of PC Harper and the way that it came about. We support the principle that a life sentence should be available, and even possibly the norm in serious cases, for the manslaughter of an emergency worker. But where we part company with the Government  is in sharing the concerns of the noble Viscount, Lord Hailsham, and everybody else who has spoken. We are unhappy with the proposal that such a sentence should be mandatory unless a judge can find “exceptional circumstances”.
The word “exceptional” has been seen in the past as requiring circumstances that are quite out of the ordinary. Frankly, I took issue with the Minister when he treated the word as allowing more latitude than the usual interpretation of “exceptional” would permit. The MoJ press release uses the phrase “truly exceptional” to describe what is required. In that connection, the noble Baroness, Lady Fox, rightly made the point about legislation by press release—a point echoed by the noble Lord, Lord Carlile, when he talked about the knee-jerk nature of this type of legislation in particular cases.
We would have far preferred the amendment to permit judges the discretion to depart from the life sentence where the circumstances and the interests of justice required. The Government’s determination to prevent judges exercising discretion, as seen throughout this Bill, is frankly depressing. This is despite Victoria Atkins MP saying in the other place only yesterday, in answer to a question from my right honourable friend Alistair Carmichael MP, that:
“Fundamentally, the judiciary and magistrates should be trusted in their sentencing decisions.”—[Official Report, Commons, 7/12/21; col. 206.]
Frankly, we agree. I made these arguments in Committee in connection with my amendments to the minimum fixed sentence provisions in Clause 101—now Clause 102 —and I will make them again when we come to debate my amendments later on Report.
The Explanatory Note to these provisions asserts that they require a court to impose a life sentence on an offender who is convicted of unlawful and dangerous act manslaughter against an emergency worker. That is misleading. There is no requirement in the proposals that the manslaughter be dangerous, in the sense that there was danger to the life of the victim, as there so obviously was in the Harper case. The requirement for danger in the case of unlawful act manslaughter, on the cases and in the CPS guidelines to prosecutors who apply those cases, it is very limited indeed. It is necessary only that the unlawful act exposed someone—not even necessarily the victim who died—to the risk of “some harm”.
I take a hypothetical case, similar to that mentioned by the noble Viscount, of a bad-tempered 17 year-old suspected by a shopkeeper of shoplifting. The shopkeeper accosts him. A row ensues, which turns into a fight—not serious, but serious enough to draw a passing police officer to come into the shop to intervene. The officer tries to arrest the youth. The youth resists arrest. He throws a punch at the officer—not hard, but plainly an assault on a police officer in the execution of his duty and enough to be obvious to everyone that it could cause some harm. The officer falls backwards and sustains an injury that turns out to be fatal.
All the elements of unlawful manslaughter are there. The guideline sentence would probably be two to four years. The required sentence under these proposals would be life imprisonment. Are these circumstances  “exceptional,” as that word is known to the law? No. is the sentence just for that 17 year-old, whose very bad behaviour had such tragic consequences? I would suggest clearly not, when one considers the overall criminality of the offence and the offender. Of course, the death of the victim would significantly aggravate the sentence. That is true for all manslaughter cases. And of course, the fact that the victim was a police officer acting in the course of his duty would be another seriously aggravating factor. But should those circumstances lead to detention for life for a 17 year-old?
The manslaughter excluded from the operation of these provisions is, as the Minister helpfully explained, manslaughter by gross negligence—a very sensible exclusion—or manslaughter mentioned in certain sections of the Homicide Act or the Coroners and Justice Act, which cover diminished responsibility by reason of a recognised mental condition, suicide pacts and loss of control, reducing murder to manslaughter if the specified conditions are met. But that leaves the whole area of unlawful act manslaughter within the provisions, and any such manslaughter of an emergency worker would attract the mandatory life sentence.
The current sentencing guidelines mentioned by the noble Lord, Lord Carlile of Berriew, which came into force as recently as 1 November 2018, suggest a range of sentences for manslaughter of between one and 24 years. They divide culpability into four ranges, from A at the top to D at the low end. The factors indicating lower culpability are as follows:
“Death was caused in the course of an unlawful act … which was in defence of self or other(s) (where not amounting to a defence) OR … where there was no intention by the offender to cause any harm and no obvious risk of anything more than minor harm OR … in which the offender played a minor role,”
or where the
“offender’s responsibility was substantially reduced by mental disorder, learning disability or lack of maturity.”
Those factors, or some of them, could quite easily be present in many cases of manslaughter of an emergency worker. So these sentences might—perhaps even often—cause serious injustice.
A further point was alluded to by the noble Lord, Lord Pannick. When a life sentence is passed, the release date is ultimately in the hands not of the courts but of the Home Secretary. Any Home Secretary, not just this one, is subject to political pressures. Were a victim, for example, the holder of a Queen’s Police Medal, and there was a campaign to keep the offender in custody on that account, how easy would it be for this or a future Home Secretary to succumb to pressure to keep the offender subject to a life sentence in custody, for far longer than would be just?
We have not sought to put down amendments to these very rushed and very late proposals, because we have no confidence that our doing so would change the course the Government have embarked upon. But I have indicated to the Minister our concerns and I would ask him for an assurance that the Government will keep these sentences under review and, if there comes a time when it is right—and appears right to the Government—to restore discretion to judges in these cases, they will be prepared to act accordingly.

Baroness Jones of Moulsecoomb: My Lords, I had a problem with this amendment myself but, not being a lawyer, I thought I would leave it to those who are. And, having heard the lawyerly wisdom pouring from your Lordships’ Benches on this amendment, I am astonished that there has not been an attempt to block the amendment. It is the only power we have to stop this Government overreaching. I am utterly disappointed and I deeply regret that I did not get more involved. I just hope the Minister actually listens to these very eminent views in your Lordships’ House and understands that this is not a smart move. I understand the public optics are very attractive, but, really, it just sounds foolish.

Lord Ponsonby of Shulbrede: My Lords, I stand on these Benches to support, or at least not to oppose, the Government. But I have to say that I am reluctant to go ahead and make this speech, based on the contributions we have just heard. The amendment inserts provisions into the Sentencing Code that require a court to impose a life sentence on an offender convicted of unlawful and dangerous act manslaughter against an emergency worker. As we know, this is known as Harper’s law, and it has been campaigned for by PC Andrew Harper’s widow after he was killed in the line of duty in 2019.
I listened very carefully to the Minister, and he made much play of the word “exceptional”. My noble friend Lord Carlile made the point about the interpretation of the word being fairly narrow in the Court of Appeal. I have to say, in the more “wild west” approach of magistrates’ courts, we interpret “exceptional” quite liberally at times. Having said that, I acknowledge that the Minister did make the point that this excludes those convicted of gross negligence manslaughter and includes only those convicted of unlawful act manslaughter, which I thought was an important point.
As I say, we on this side will support the Government in their amendments. However, I do recognise that some very serious points have been raised in this debate.

Lord Wolfson of Tredegar: My Lords, I am grateful to all those who have contributed and I can start by reassuring the noble Baroness, Lady Jones, that I always listen. We may not always agree, but I certainly always listen. I can also reassure the noble Baroness, Lady Fox of Buckley, that this is not law made by press release, nor is it law in the guise of a political policy statement. We have considered this issue very carefully. Indeed, it is because we have taken time to get the policy right as we see it that the amendment is here now and not earlier—to deal with one of the points made by my noble friend Lord Hailsham.
We believe this is the right approach to these circumstances. Of course, I carefully read the judgments in the Harper case, in particular the Court of Appeal judgment. I hope it goes without saying that, standing at this Dispatch Box, I have great respect for that court, as indeed I do for all courts. But that does not mean that Parliament is unable to or should be cautious to legislate in the area of sentencing, or should be prevented or inhibited from doing so. We are entitled to do so, and in this case, we ought to.
I will pick up on a couple of the points made by contributors. First, on exceptional circumstances, I seem to be being criticised both for refusing to define “exceptional circumstances” and for putting it too broadly. I deliberately did not gloss or parse the phrase. “Exceptional circumstances” is a phrase used in other legislation, for example the Sentencing Act 2020 and the Firearms Act 1968. We believe it is best to leave it to the courts to interpret and apply that phrase, and not to parse or gloss it from the Dispatch Box.
The noble Lord, Lord Marks, picked up on the word “totally”, which appears, as he said, in a press release form the Ministry of Justice. That shows the importance of leaving it to the words in the statute and not looking at anything else when the courts interpret those words.
An example was given of an off-duty police officer intervening in a fight in a pub. It is right to say that there is no requirement for the offender to know that the victim is an emergency worker acting as such. We stand by that. That is already the approach in other legislation passed by Parliament—for example, the Assaults on Emergency Workers Act 2018. There is no requirement in that Act, either, for the defendant to know that the victim is an emergency worker, although in most cases that will be apparent to the defendant.
For the unlawful act of manslaughter offence to apply in this case, the defendant must have been committing a criminal offence. If the actions of someone are such that they not only commit a criminal offence, but their actions further result in the death of an emergency worker who may be attempting to relieve that very situation, the Government believe the behaviour warrants a life sentence.
I come now to what we mean by a life sentence. I have already dealt with the “exceptional circumstances” point, so I turn to the point on life sentences raised first by my noble friend Lord Hailsham—regarding tariffs—and then more directly by the noble Lord, Lord Pannick. When a person is sentenced to a life term and not a whole life term, the judge will set out what the tariff is. Then it is a matter for the Parole Board to determine release, and the person will be under a life licence thereafter.
These provisions do nothing to circumscribe the ability of the trial judge to impose whatever tariff they think is appropriate in the circumstances. If the trial judge thinks a lower tariff is appropriate—the word “modest” was used by my noble friend—no doubt that is what they will impose. As in the case of murder, we believe the offence warrants a life sentence with a tariff and the consequences therewith.
I hear the point made by the noble Lord, Lord Pannick, that a life sentence does not normally mean that the person stays in prison for their whole life. That is the case across a swathe of criminal law, and maybe on a future occasion the House can decide whether that is an appropriate way to continue. Given that that is our sentencing structure—which I think is correct—it is also appropriate in this case.
I think the debate comes down to whether one accepts that the example given by my noble friend Lord Hailsham of the off-duty officer in civilian clothes who intervenes in a fight—

Lord Carlile of Berriew: I am grateful to the Minister for giving way. One point he has not dealt with, as I understand it, is why the Sentencing Council and sentencing guidelines are not seen as an adequate and flexible mechanism for dealing with cases of this kind. We need a reasoned explanation for the rejection of that proposition.

Lord Wolfson of Tredegar: The reasoned explanation is that the Government believe that this is an offence which should be marked by a life sentence—a mandatory life sentence. The amount of time the person serves can be set by the judge in a tariff.

Lord Carlile of Berriew: The Minister has just given the game away by his slip of the tongue. He said it is a case which should be marked by “a life sentence”, and then he said, “a mandatory life sentence”. He was right before he made the slip of the tongue. That is exactly what judges can do and exactly what the Sentencing Council can deal with. I am afraid that I do not accept that his explanation so far has been reasoned.

Lord Wolfson of Tredegar: We are now having precisely the opposite debate to the one we had in Committee. In Committee, when someone said to me—I think it was the noble Baroness, Lady Jones—“this is a mandatory sentence” and I said, “but there are exceptions”, it was said to me, “no, it is mandatory”. Now, when I am trying to point out that it is not mandatory, in the sense that it is a mandatory life sentence but it does not mean you serve life in prison, that is said to be a slip of the tongue. I absolutely meant what I said: this provision sets out a mandatory life sentence, because the Government believe that is the right way to mark society’s horror at the killing of emergency workers, in the same way that we do for murder.
However, with murder, and in this case, the trial judge will have the ability to set an appropriate tariff. Also, unlike with murder, the trial judge can, in exceptional circumstances, depart from the sentence entirely, something which society and Parliament does not enable a trial judge to do in any murder case. With great respect to the noble Lord—

Lord Carlile of Berriew: I am sorry to interrupt again, but the Minister has said something completely untenable. He said that under “exceptional circumstances”, the judge has the power to depart from the sentence entirely. That is absolutely not the case. If the sentencing guidelines in front of any judge sitting in a criminal court lead to the conclusion that the starting point for the sentencing process is a life sentence, but there are circumstances at which different levels can be set, they will operate on that basis. This provision is unnecessary if we trust the judges. The Government are telling us, on the basis of belief, as the Minister said—which I do not necessarily regard as reasoned—that they do not trust judges to pass appropriate sentences in these cases, on the basis of one or two instances, when there is a perfectly good living instrument for dealing with this.

Lord Wolfson of Tredegar: My Lords, with genuine respect, the noble Lord is wrong if he thinks that that is what I have said. Let me be clear: if there are exceptional circumstances, the judge is entitled to depart from the sentence. In other words, the judge does not have to impose the life sentence. The judge will then decide what sentence to impose. With the greatest respect, I was right to say that if there are exceptional circumstances, the life sentence does not apply. If there are no exceptional circumstances, the life sentence does apply, and the judge will then set a relevant tariff.

Viscount Hailsham: But does not all of this imply that we are really not serving any purpose by the new clause, partly because of the point made by the noble Lord, Lord Carlile, and also the point conceded very fairly by the Minister to the effect that the trial judge can impose in reality a very low tariff? So the question is, what is the point?

Lord Wolfson of Tredegar: My Lords, I have explained that. There is a difference between being given a life sentence with a 10-year tariff and being given a sentence of 10 years. That is a point that we all accept in the case of murder.

Viscount Hailsham: That is true, too, but the case of murder arises from the original bargain made with Parliament and the country at the time when capital punishment was abolished. That does not apply as an argument to what we are doing now.

Lord Wolfson of Tredegar: My noble friend is absolutely right to say that that is the origin of the life sentence for murder. It was a deal done, if I can put it in those respectful terms, but we have life sentences elsewhere in our legislation as well. The point that I was seeking to answer—and, with great respect, I think I have answered it—was, as I understood it when it was put against me: what is the difference if the trial judge is going to give a tariff of x years, why not just have a sentence of x years? However, there is a difference, as we all recognise, between a life sentence with a tariff of x years and a sentence of x years. We can have a debate—

Earl Attlee: My Lords, does the Minister not run the risk of ending up, in the case of the pub brawl, with the offender being sentenced to life but with only a four-year tariff?

Lord Wolfson of Tredegar: I would not use the word “risk” at all. On the one hand, I am being charged with not trusting the judges and, on the other, giving the judges too much discretion. I am entirely happy with a trial judge having the ability to set an appropriate tariff in these cases, as trial judges do in all cases of murder. Whether the tariff given is four, 10, 15, 20 or 30 years is entirely a matter for the judge. I am entirely happy to trust the judge. However, it is absolutely right for Parliament to say that, in these cases, where somebody has committed an unlawful act  that has led to the death of an emergency worker who was acting as such, a life sentence ought to be the correct response from the court. Two points arise. First, with great respect to the noble Lord, Lord Carlile, if there are exceptional circumstances, that sentence does not apply at all. Secondly, if it applies, the judge can impose a tariff.

Baroness Butler-Sloss: Forgive me—and I thank the Minister—but perhaps I might ask him whether it is reasonable that a 16 or 17 year-old should be on lifetime licence when alternatively he might get the time of detention plus another three or four years. A lifetime licence means that he is under the control of probation officers from the age of 16 for the rest of his natural life.

Lord Wolfson of Tredegar: My Lords, we have considered this. We restricted the new sentence  to 16 and 17 year-olds to ensure that only older children who are convicted of this serious offence are given a mandatory life sentence, unless there are exceptional circumstances that mean it is not justified. Of course, exceptional circumstances are not just those relating to the offence but those relating to the offender. There is a precedent for this age distinction. The Criminal Justice and Courts Act 2015 also uses the age of 16 as a threshold to begin applying minimum sentences for knife-crime offences. So we have considered the point made by the noble and learned Baroness.

Baroness Jones of Moulsecoomb: I am so sorry, but I do not understand why we are arguing about this. We are all dissatisfied with what the Government are doing, yet none of us can stop it. It is all angels dancing on the head of a pin, as far as I can see. I am really distressed at this and wish that I had spoken to more people and perhaps got some others onside. The Government are making a mistake and that is what the Minister should hear from this debate.

Lord West of Spithead: I am not a lawyer, I am very pleased to say—I am just a simple sailor. However, it seems from the complexity of the debate that this is quite a significant amendment that was brought in quite late. I find that rather worrying, because the feeling around the House is that if there were a vote on this, it might well not pass; I think it would fail. That is a worrying position to be in and I do not know how we can resolve that. It is not really very satisfactory.

Lord Paddick: I was not going to say anything, but I am, I think, the only former police officer in the Chamber. Is the Minister saying that he would be satisfied if somebody were sent to prison for four years for killing a police officer on duty in these circumstances? That seems to be what the noble and learned Lord is saying. In which case, what is the point?

Lord Wolfson of Tredegar: I know it is bad form, but perhaps I can answer in reverse order. I certainly was not saying that. Indeed, the point that  I was trying to make was that I was not going to get  into what an appropriate tariff would be in any case;  I regard that as absolutely a matter for the trial judge. It is not helpful for trial judges or indeed anybody else for Ministers on their feet to hypothesise as to what they might think an appropriate tariff would be in a particular case. The tariff is entirely a matter for the trial judge, who will decide it in the way in which they decide tariffs in other cases of life sentences as well.
To the noble and gallant Lord—forgive me, I am not sure whether I have that right; he is proud not to be a lawyer, a point with which I sympathise—I say that we brought in this amendment as soon as we had thought about the policy and, we think, got it right. When we were thinking about this issue, there were there were a number of points in the policy that required very careful consideration. That took time and that is why it is happening now. I cannot say any more than that.
I was going to acknowledge another point made, but I think I have already responded.

Baroness Lister of Burtersett: I apologise for not being here at the outset, but I have listened very carefully to what has been said and it seems to me that it would be wrong simply to steamroller this amendment through now when virtually everyone who has spoken has done so very eloquently against it. Would it be possible to take it away, talk to learned Members of this House and come back at Third Reading with something that might be more acceptable ?

Lord Garnier: Like the noble Baroness, Lady Lister, I, too, apologise for not being here at the outset when my noble friend Lord Hailsham began. I know that next week we are going to talk about IPPs. That subject carries with it all the problems that this subject will bring with it. We now know that IPPs went wrong and have created injustices, and that there are people who have IPPs but short tariffs well past their expiry date and who are still in prison 10 or 15 years after their sentencing. Could we not learn the lessons from the IPP problem and, in order to help us learn those lessons, postpone a decision on this clause until after we have had the IPP debate, so that together we can draw a united conclusion about how best to move forward with justice?

Lord Wolfson of Tredegar: My Lords, the joys of the IPP debate are ahead of us. That raises very different points. The IPP sentence has different characteristics and the problems that it has given rise to are entirely different. I listened very carefully to the debate in Committee on IPPs, when a number of noble and noble and learned Lords expressed disquiet and tabled various amendments. They will know that I have had conversations with them about it. So I am entirely alive to the IPP issue, but that is completely separate from this issue. We consider that this measure is an appropriate response to this form of offending.

Baroness Fox of Buckley: The Minister listened very carefully to the debate in Committee on IPP. Some of us have read that and thought about it a lot since then. The problem is that noble Lords have not had the opportunity to listen very carefully to the debate on this particular amendment: that is the problem,  in a way. It is not a straightforward amendment. I learned of it by hearing about it via the media and thought it could not possibly be being brought forward in relation to this Bill; I actually explained to people that they did not understand the way in which legislation was made, and that that was just something that the media said. Then, I realised that it was happening.
The Minister was very good and answered some of my queries and made sure that I did not fight any straw men when I went to him with particular arguments. He was very considerate in answering them. However, I do not think that the House has had the chance to consider this amendment. It is not without parallel to the IPP, inasmuch as it is a controversial sentencing change that has very big implications. We know that, because in the press release and the media reports, it was said that this would change everything. That is how it was announced: it was proclaimed as something that would change everything. Therefore, if it is going to change everything, people in this House should have a chance to debate it more thoroughly than now, so it is reasonable to ask if it could be brought forward later on in the Bill in order for some consideration to be given.

Lord Wolfson of Tredegar: I do not know which of the no-doubt multifarious press releases the noble Baroness read, but it was clear in the ones that I saw that the matter was going to be brought back here. This amendment was, I understand, tabled on 1 December, so the issue has been live. I am very happy to take  any further interventions. That was probably not a good idea.

Earl Attlee: My Lords, I cannot resist the temptation. Would the Minister be prepared to express some uncertainty about the “exceptional” rule? If he expressed that uncertainty, it would mean that a Third Reading amendment to the noble Lord’s amendment would be acceptable.

Lord Wolfson of Tredegar: My Lords, I am not quite sure what I am being asked to accept, but I do not have any uncertainty as to what “exceptional circumstances” is. It is a phrase used in this legislation; it is used in other legislation; it is a phrase that is well known to the courts. It is a phrase that they are perfectly able to deal with.

Lord Beith: The relevance of IPP sentences to this debate is that, when IPP sentences were introduced, rather similar speeches were made from the Front Bench to the one that the Minister is making tonight. I know his style his different, but the fact remains that it was a disaster and a scandal. It developed in ways in which all those who introduced it did not anticipate, and now concede was wrong, but they had not fully understood at the time what the consequences were. This has all those hallmarks about it.

Lord Wolfson of Tredegar: As I said, I am very alive to the IPP issues, as the noble Lord knows; but the IPP issue and the IPP sentence was a novel sentence which did things that other sentences did not  do. Indeed, that is why it was brought in. The shape of this sentence, however, is not novel. It is the application to this particular offence that is new. With the greatest of respect, therefore, I disagree with the comparison to IPP sentences, which were themselves novel.
I hope that I have set out the government position clearly and fairly—

Lord Paddick: My Lords, the noble Lord started his contribution to this debate by saying that he was listening. Surely, he has heard from the House that the House is not content to allow this amendment to pass at this stage. Surely, the only reasonable thing to do in these circumstances—because nobody wants to divide on this issue here and now—is for the Minister to say that he will take it away and bring it back at Third Reading once noble Lords have had a chance to discuss the issue with him between now and Third Reading.

Lord Wolfson of Tredegar: As I hope the House knows from this Bill and plenty of other Bills, I am very happy to discuss issues with anyone at any time. However, points of principle have been made, and points of principle have been answered by me as clearly and cogently as I am able to do. I think that the appropriate thing to do—relative newcomer as I am to this House—is that the Question on the amendment should be put. If people want to—

Lord Ponsonby of Shulbrede: My Lords, I have another suggestion for the noble Lord, as we can all see that he is in a difficult situation. The Government have put forward their protest amendments, which are coming at the latter stage of Report. There is nothing to stop the Government from withdrawing this amendment now and bringing it back at the latter stage of Report. It will give everyone time to consider their position and the Government would not lose time. They could do it via Third Reading, or they could do it the way I am suggesting now. I hope that the Minister will consider that suggestion constructively.

Lord Marks of Henley-on-Thames: I am sorry to make a second intervention before the Minister has had a chance to answer the first. The point I wanted to make to the House and for the Minister’s consideration is really a very similar one. It seems to me that the suggestion of the noble Lord, Lord West, is a viable one and the suggestion of the noble Lord, Lord Ponsonby, is also a viable one. The noble Lord mentioned listening. We all know that he does listen and that he is prepared to listen. That listening generally involves talking and having meetings about amendments and proposals. This is a government amendment, and the Minister is quite right to point out that it was publicised on 1 December. That was one week ago for an important change in the law. The suggestion of the noble Lord, Lord Ponsonby, allows this to be considered and discussed with noble Lords about the House during the rest of Report, and it could come back in January, because we have this very long period due to the Christmas break. May I suggest that that is the fair and sensible  way to proceed, rather than insisting on putting the Question on it tonight, landing the House with an unexpected vote if there were to be a vote, and failing to discuss it with noble Lords around the House in the meantime, which could quite easily be done?

Earl Attlee: My Lords, I am not convinced that the noble Lord, Lord Ponsonby, is correct because if we delay the amendment, we would be putting it at the back of the Bill, but it has to be in this position in the Bill. Therefore, I think we should leave it until Third Reading rather than delay it.

Lord Wolfson of Tredegar: My Lords, I am not going to try to adjudicate on that point, which seems to be a point of procedure, better left to those who know more about it than I do. I have listened very carefully to the debate, and points of principle have been raised. With genuine respect, however, I believe that I have set out the Government’s position on those points of principle. Kicking the can down the road—attractive as that can sometimes appear—will not achieve anything substantive.

Lord Falconer of Thoroton: This is pretty shocking. There is a lot of support for the principle that the amendment could be so much better if it could be debated. I completely understand the noble Lord’s embarrassment. He does not want to go back to the Ministry of Justice and not have the amendment, but if you want good law, recognising that the Government want this, there is so much that could be discussed to make this provision better.
The noble Baroness, Lady Williams, agreed without any pressure on two things in relation to the additional protest measures. First, she agreed that they should come at the end of Committee and secondly, she did not move them in Committee because of the exact problem that has arisen in this case. She indicates the right way forward. We would greatly appreciate in the House if the noble Lord would show us the same courtesy that the noble Baroness, Lady Williams, showed us.

Lord Wolfson of Tredegar: I am very happy to be accused of all sorts of things, but I hope that nobody in this House believes that I act either towards it or towards any of its Members with discourtesy. We may have disagreements, but they are always, I hope, courteous. I am not in the least embarrassed about going back to the Ministry of Justice with or without anything. My task, as I see it, is to set out the Government’s position in this House and then the House has to take a view.
With great respect to the noble and learned Lord, I do not accept that this is a question of tweaking the provision or making it better. The points that have been put to me are really points of principle—people do not agree with this at all, while saying, “Of course we agree.” The matter ought to be presented to the House and dealt with by it today.

Lord Carlile of Berriew: Following on from the remarks of the noble and learned Lord, Lord Falconer, can the Government agree to the House being adjourned for half an hour or so, so that there  can be a discussion between the usual channels and between the groups in the House as to how this should continue? We would be very grateful and it would be seen as a matter of utmost but necessary courtesy.

Baroness Jones of Moulsecoomb: I have an alternative suggestion; perhaps the clerk can tell us whether it is legal. Is there anything to stop any of us calling for a vote once—

Noble Lords: No. We can.

Baroness Jones of Moulsecoomb: Then if the Minister puts the Question, I will call for a vote.

Lord Pannick: Any Member of the House can call a vote but, if the Minister is not willing to accede to any of the suggestions that have been made, it is the obligation of the Front Benches to indicate that they are so dissatisfied, in the light of all the debate and the fact that we have only had a week to consider this, that they will divide the House. If they were so to indicate, that might impose a bit more pressure on the Minister.

Lord Wolfson of Tredegar: In the last week, as is my wont, I have had discussions with a number of Members of this House on this matter. Any Member of the House knows that my door is always open to them, metaphorically and often literally. All the discussions that I have had on this amendment have been ones that I have reached out to others to have. Nobody has knocked on my door. In those circumstances, I cannot say that we will adjourn. If I am told differently, that will be for others to decide. At the moment, I will ask the House to vote on my amendment.

Viscount Hailsham: My Lords, I hate to intervene on my noble friend but I will formally move that the House be adjourned for one hour.

Lord Wolfson of Tredegar: My Lords, I ask the House to vote on my amendment.

Motion

Viscount Hailsham: Moved by Viscount Hailsham
That the House do adjourn for one hour.

Viscount Hailsham: I beg to move.
Ayes 125, Noes 162.

Viscount Hailsham’s Motion disagreed.

Lord Wolfson of Tredegar: My Lords, I want to put it on record that in the last week, when this amendment has been tabled, all the engagement I have had on this matter I have facilitated, and I have reached out to. Not a single Member of this House has reached out to me about this amendment. I beg to move the amendment.
Ayes 211, Noes 82.

Amendment 1 agreed.
Sitting suspended.

Covid-19 Update
 - Statement

Lord Kamall: My Lords, with the leave of the House, I shall now repeat a Statement made in another place by my right honourable friend the Secretary of State for Health and Social Care. The Statement is as follows:
“With permission, Mr Speaker, I would like to update the House on the Covid-19 pandemic. We are working night and day to understand more about the omicron variant. There is a lot still to learn, but some important data has emerged very recently and I would like to update the House on the latest developments.
There are three reasons why the omicron variant is a threat. The first is that it is far more transmissible than the delta variant. The delta variant was much more transmissible than the alpha variant, and we are confident that omicron is significantly more transmissible than delta. We can see this most starkly when looking at how many days it takes for the number of infections to double for each variant. For delta, this was around every seven days, but for omicron, based on the latest data from here and around the world, our latest analysis is that it is between 2.5 and three days. This has made the virus an even more formidable foe.
The rate of growth in S-gene dropout cases in England, using S-gene dropout as a reliable proxy, is similar to that observed in South Africa. Although there are only 568 confirmed omicron cases in the UK, we know that the actual number of infections will be significantly higher. The UK Health Security Agency estimates that the number of infections is approximately 20 times higher than the number of confirmed cases, so the number of infections is closer to 10,000. UKHSA estimates that, at the current observed doubling rate of between 2.5 and three days, by the end of this month infections could exceed a million.
The second is severity. We do not yet have comprehensive data on the severity of this virus, but rising rates of hospitalisation in South Africa show that it certainly has the potential to cause harm. South Africa is a country where the average age is 13 years lower than in the UK, where they have a high level of antibodies from natural infection, and where it is currently the middle of summer. Even if the severity is lower than or the same as delta, high transmissibility  means that the omicron variant can still have a severe impact, with the threat of more hospitalisations and unsustainable pressure on the NHS. This would mean an impact not just on Covid treatment but on non-Covid care that we all rely on, such as emergency care if somebody was involved, sadly, in a serious accident. When we set out plan B, we said we would act if the NHS was likely to come under unsustainable pressure and was at risk in providing the care and treatment that people need. The omicron variant has given us cause for concern.
Thirdly, we have been looking closely at what the omicron variant means for our vaccination programme. New laboratory data which has emerged in the last 24 hours suggests that there is lower immunity against omicron from vaccination compared with the delta variant, so that two doses of a vaccine are less effective at reducing transmission in the community. Early research published today by Pfizer suggests, however, that a third dose of the Pfizer vaccine neutralised the omicron variant to levels that are similar to the impact of two doses against the original strain of the virus. So it is more important than ever that we get the boosters available for all those eligible, and keep strengthening the defences that we have built. Today we have opened booster bookings to 7 million more people in England, so people aged 40 and over, and those in high-risk groups, will be able to get their booster jab from three months after their second dose.
Another defence is new treatments, which have a huge part to play in protecting the most vulnerable from Covid-19, especially for those who are immunosuppressed, for whom vaccines may be less effective. Today we have announced plans for thousands of people across the UK to be among the first in the world to access life-saving antivirals through a new national study. People who are at highest risk from the virus—for example, those who are immunocompromised or cancer patients—will also be able to access treatments outside this study from next Thursday if they have a positive PCR test.
We have built some powerful defences. We have put more boosters in arms than any country in Europe, we have built a huge nationwide infrastructure for testing, and we are leading the world in the deployment of new treatments. Thanks to these defences and our decision to open up in the summer rather than the winter, we are much better protected than we were this time last year, and we need this protection now more than ever. Although omicron will become more and more prevalent over the next few days and weeks, we will see the delta and omicron variants circulating together. Facing these twin threats without these pharmaceutical defences would have been hard enough, but even with them in place, we still face a perilous winter and so, unfortunately, we need to take steps against the threat of this new variant.
When we were moving down our road to recovery, we looked at four tests to see whether we should proceed to the next stage: that the vaccine deployment programme continues successfully; that the evidence shows that vaccines are sufficiently effective in reducing hospitalisations and deaths in those vaccinated; that infection rates do not risk a surge in hospitalisations,  which would put unsustainable pressure on the NHS; and that our assessment of the risks is not fundamentally changed by new variants of concern. Unfortunately, the situation is markedly different now to how it was in the summer, when we were able to open up, so we must take proportionate steps to meet this emerging threat. These are not measures that any of us want to take, but these measures give us the best chance of saving lives and protecting our freedom over the next few weeks. It is precisely because we do not want lockdown that we are putting these proportionate steps in place now. As we have seen before, if we act early, firmly and decisively, and come down hard on this new omicron variant now, we can avert tougher action later on.
I know that the news of further measures will be disappointing for many people and that every measure comes with a cost. I can assure the House that in making these decisions we have taken a wide-ranging view, looking at the impact not just on the NHS in terms of Covid and non-Covid care but on the nation’s education, economy, life chances and mental health.
I would like to update the House on the measures we will take to enact plan B. First, we will reintroduce guidance on working from home; it will be updated to say that only people who cannot work from home should continue to go into their workplace. We know that this has an important part to play in slowing transmission, both at workplaces and on public transport. Secondly, we will introduce mandatory certification, based on vaccines or tests, in nightclubs and large events. This will reduce the number of unvaccinated, infectious people in venues, which could limit overall transmission. Thirdly, on face coverings, we will extend the legal requirement for shops and public transport to all indoor public settings, including attractions and recreation, although hospitality will be exempt and we will exempt specific activities where it is not possible or practical to wear a face covering, such as singing and exercise. We will lay those regulations tomorrow, to come into force the following day.
Fourthly, as omicron spreads in the community, we will introduce daily tests for contacts instead of isolation so that we keep people safe while minimising the disruption to daily life.
Fifthly, on communications, we will be urging caution in all our communications on Covid-19 and keep urging people to get their booster doses and follow the little steps that they can to get the virus under control. These regulations will be reviewed on 5 January, when we will also update the House, and they will sunset on 26 January.
Finally, we will also be taking further measures to protect and support social care and we will update the House on a package of measures later this week. It is better to stay a step ahead of the virus rather than reacting to what it brings, taking control of our response now rather than waiting for what comes next. Waiting a few weeks would make it easier to explain the need for these measures, but by then it might well be too late. So we need to act now and take these balanced and proportionate steps. We take these steps with a heavy heart, but we do so confident that we are doing everything in our power to keep our nation safe this  winter. We have come so far over the course of this year, thanks to the defences we have built against this deadly virus. Now, as we face this new threat, we must draw on the same spirit that got us here, strengthen our defences and think about what we can do to get this virus under control. I commend this Statement to the House.”
My Lords, that concludes the Statement.

Baroness Thornton: My Lords, I thank the Minister for reading the Statement tonight. On this side of the House, we have always put public health first at every point during this pandemic, so I repeat the words of my honourable friend Wes Streeting, shadow Secretary of State for Health and Social Care, in the Commons an hour ago, when he said
“I want to be clear with the House and the country that Labour will support these measures in the national interest.”
Of course, we know that this decision is not taken lightly. Restrictions impact on people’s lives, livelihoods and liberties and we do not take those for granted on this side of the House.
Everyone wants to be able to enjoy Christmas safely this year, given the trauma of last winter. But the omicron variant is a clear threat, as the Minister has explained, and clearly swift action is needed to limit its spread. I want to ask the Minister a question I have not asked for some time in your Lordships’ House: what is the R number today and what is it predicted to be in two weeks’ time?
On these Benches, we have said that scrapping the guidance on mask wearing was a mistake and have consistently called for masks to be worn in indoor hospitality settings too. We welcome the Government’s reintroduction of that measure, if that is what the Minister said. I seek some clarification on what is actually going to happen; I am not sure I understand the difference between an attraction and hospitality, so could the Minister go into some detail about what will happen in our pubs and restaurants—or will they continue as they are?
The House may remember that we have said that people should have the flexibility to work from home, so we welcome the updated guidance on that. On vaccine passports, I am glad that the Government have listened and responded following their previously abandoned plans to require vaccination status only, and that presenting a negative test will be an option. Can I ask for clarification about whether vaccine passports will be required for access to essential services?
The Minister is correct to say that the greatest tool against the pandemic remains vaccination. How do the Government plan to speed up the booster rollout, which is certainly not hitting the target of 500,000 vaccines a day and is not on track to get everybody boosted by the end of January?
Public health depends and relies on people’s willingness to comply with rules that affect their lives, livelihoods and liberties, and which, in return, relies on confidence in the people making those rules. The damage the Government have done to public compliance with the rules that have governed our lives during the pandemic  is very serious indeed. We had the Cummings eye test—that seems like years ago—the former Health Secretary’s tryst with his special adviser, the former Education Secretary’s private party, the Prime Minister attempting to get out of having to isolate, and now the footage of his staff laughing on camera and joking about breaking the rules at a No. 10 Christmas party.
It is hard to overstate how this makes people feel when they have followed the rules and complied, sometimes at enormous personal cost—the businesses that were forced to close; the family weddings that were postponed; the chance to say goodbye to loved ones at funerals that we missed; and the NHS workers, educators and key workers who risked their own health to get us through the pandemic before vaccines and treatments arrived. The headline we saw today is why the laughter in the video from Downing Street is so stomach-turning; it feels as if they are laughing at us.
It is not just that they clearly feel that there is one rule for them and one for everyone else, infuriating though that is; it is the actions of the Prime Minister, which have undermined public trust and distracted from key public messaging at a critical time. This comes from the very top of our country. The problem is that we have a Prime Minister who does not believe the rules apply to him—his own conduct says that—and who also finds it almost impossible to own up, take responsibility and admit that he might have been wrong. The Minister needs to explain to the House how the Government will overcome that.
I was very pleased to hear the news that three doses of the Pfizer/BioNTech vaccine appear to neutralise the new omicron variant, according to preliminary studies; this is very good news indeed. However, it underlines that we have to get more jabs in arms if we are going to make that at all effective.
How will the Government support the people who cannot work from home and who need to continue to go to their workplace? As we know, millions of people who we depend on every day to keep our nation running have continued to go to work throughout the pandemic.
Will the Government set a deadline by which they expect all children to receive their first dose of the vaccine? Will they be able to get them vaccinated over the Christmas period? What are the Government doing to drive up vaccination in areas where there has been low take-up? Are they offering additional support ahead of the winter?
We have discussed in the Chamber before that many critically ill NHS Covid patients are unvaccinated pregnant women. Why is there only one mention of pregnant women in the Government’s COVID-19 Response: Autumn and Winter Plan 2021? In the Whittington Hospital, of which I am a non-executive director, we have set up a room for pregnant women to deal with the issues they may have about vaccination. The Minister might look at that as one of the ways of dealing with this.
Finally, do the Government accept that, if they have not done enough to drive down infection rates by improving ventilation in public buildings such as schools, they must institute a programme of investment in  ventilation in schools? This pandemic is clearly a long way from being over and we need our children to be protected.

Baroness Brinton: My Lords, I thank the Minister for repeating the Statement. The chaos to even get it heard in the Commons and the very late notice on whether we were having this or Monday’s Statement sum up the chaos that the Government find themselves in.
As the noble Baroness, Lady Thornton, outlined, the Government have once again lost the trust of the public. My first question is: how on earth will Ministers persuade people to follow these new, very important restrictions, with the chaos going on at the moment?
We understand that restrictions are disappointing but, from these Benches, we have always said we want people to remain safe. As for these proposals, we have said before and say again that we think the Government are once again late to move to plan B.
I note that the arrangements will remain until 5 January and that there is a sunset clause of 26 January. Please can we debate the regulations before they expire—preferably next week, before we rise for Christmas?
Today, there are 131 new cases of omicron, a rise of a third in one day, taking the UK to nearly 600 cases. This confirms that the doubling rate is between two and three days. Scientists are talking about an R rate of between 2 and 4 and it is also following the same rapid transmission trajectory seen in many other countries. Unfortunately, in the last 48 hours, we have seen that South Africa is now showing increasing hospital and critical care bed admissions, showing that, even if there is less likelihood of serious disease, there is still some serious disease.
Ministers are right to be concerned about superspreader events, which are being reported all over Europe. Assuming that doubling continues at this rate and with a million cases possibly by the end of the year, that is very worrying, as is the news of the lower immunity against omicron from the vaccine compared to delta.
Just this afternoon, Antonio Conte, head coach of Tottenham Hotspur, reported that eight of his first team members and five members of staff have tested positive ahead of a big European game. He said:
“The situation makes me very upset … It’s contagious and there is a big infection.”
He is right.
The Statement does not mention that there is a higher percentage of young children both contracting omicron and going into hospital in South Africa. What arrangements are being made to ensure that parents recognise that and understand the different symptoms that young children have?
From these Benches we have been urging the Government to move ahead with plan B since cases started rising steadily in September. Today, all cases—of whichever variant—still number over 51,000, with a further 161 deaths. It is vital that we make sure that those numbers do not go up.
Face masks are vital, especially with increased transmission. But do I understand the Minister to say that singing, which we already know is high risk for transmission, will be exempt? On what medical grounds is that sound? I understand that hospitality has exemptions too. Is this taking us back to when you could take your mask off if you were sitting at a table and eating, but had to wear one when you were moving around a pub, bar or restaurant?
Ventilation is vital. Can the Minister say how many schools have received the air filters they were promised a year ago?
I notice that we are moving now to lateral flow tests rather than isolation. Can the Minister say what the current percentage of false negatives is for lateral flow tests and how that is going to be managed?
It makes sense to follow both Scotland and Wales in asking people to work from home if they can. How is that likely to affect the working arrangements on the Parliamentary Estate, including your Lordships’ House? In particular, and as a minimum, should the House consider returning to remote voting to avoid noble Lords mixing together in large numbers? We know we have a large number of votes over the next few weeks.
There are also a large number of notable omissions from this Statement. The first is the difficult issue of social care and support for those in homes, or housebound, as well as the staff who look after them. I see that the Statement says that there will be information to follow.
The second is the lack of mention of the Covid app. Given that many people are saying that their third dose or booster dose information is still not being recorded properly, can the Minister say if these difficulties have been resolved? The consequences of having to have Covid certification will affect people from Friday.
Thirdly, there is not one word about the clinically extremely vulnerable: that is 3.7 million people, of whom 800,000 are severely clinically extremely vulnerable. Most of the larger group should have had their booster jabs by now, and should be reasonably protected, but can the Minister say yet if that is true of omicron, especially as no one will have had three doses of Pfizer?
I thank the Minister for arranging our meeting next week to discuss the problems that the severely clinically extremely vulnerable are facing. Doctors are already telling this group that they will have a less good and shorter-lived response—if any—to vaccines. Is there any data on vaccinations for this group and omicron?
Other problems remain, as the Minister will have seen from the responses to my tweet this morning. Many people are still finding that their GPs do not know they should have a third dose, because there is no register and their hospital consultants have not had time to write to every patient’s GP. The NHS app still is not recognising third doses. GPs are not sure if it should be eight weeks or 12 weeks between the third dose and the booster.
While the news about the antivirals and retrovirals is good, most CEV people do not want to catch Covid. So above all, following this Statement, where is the specific guidance to both groups who are alarmed by the high number of delta cases, the growing number of  omicron cases, and the marked reluctance of people generally to follow mask guidance. This is not a “nice to have”. This is 5% of the population who risk severe disease or dying from Covid. Please can the Minister agree to advise this group in the same way that there will be advice for the social care sector?

Lord Kamall: I will try to answer as many of the noble Baronesses’ questions as I can. Regarding the more scientific data and evidence, I hope that Peers have received an invitation—if not, I will make sure that it is sent out—to a call with Dr Jenny Harries and me on Friday, during which we will be providing further details and data. It will be an all-Peers call, so noble Lords can discuss a lot of the scientific facts and evidence.
We are advising that you should work from home if you can. If you cannot, you should take lateral flow tests regularly when attending the workplace. We are requiring the wearing of face coverings in a wider range of settings. If noble Lords will forgive me, I will go into some detail here and, if appropriate, I will place these details in the Library.
Last week, we took the initial step of making face coverings mandatory again in England in shops, including contact services such as hairdressers, on public transport and on transport hubs. We are now going further, requiring the wearing of face coverings in a wider range of locations. Police and community support officers can take measures if members of the public do not comply with the law. Exemptions apply for children under the age of 11 and those unable to wear a mask covering due to health, age, equality or disability reasons.
From Friday, the settings requiring face coverings will be attractions and recreation venues—concert halls, exhibition halls et cetera—cinemas, theatres, museums and galleries. I have a longer list and I am happy to share that as appropriate with noble Lords. Other settings include bingo halls and casinos, snooker and pool halls, skating rinks, circuses, other business ventures such as public areas in hotels and hostels, play and soft play areas, sports stadia, other indoor public venues, places of worship, crematoria, chapels, community centres, public libraries and polling stations.
Places that already require face coverings, just to remind noble Lords, are shops and supermarkets, shopping centres, auction houses, post offices, banks and building societies et cetera, estate agents and letting agents, premises providing personal care, veterinary services, retail galleries, retail travel agents, takeaways without space for consumption, pharmacies, public transport and others.
So, face coverings have been reintroduced. We know that they are effective at reducing transmission indoors. I thank the noble Baroness for the support for these measures. We appreciate it on this side of the House.
It will not be a legal requirement to wear a face covering in hospitality settings, restaurants, cafés, canteens, bars, shisha bars and premises other than registered pharmacies providing medical or dental services, including services relating to mental health, and photography studios. The reasoning behind that, I am sure, will be covered in the call on Friday. I do not have all the  details and the scientific evidence to hand, given the late notice of this, but I hope that Dr Jenny Harries can share much of that detail with noble Lords.
On the booster rollout, we have already seen nearly 21 million people take up their booster dose, with 1.9 million people coming forward last week. The NHS vaccine programme is to be extended today. People over 40, along with those in high-risk groups, can take their dose.
I was interested to hear from the noble Baroness, Lady Brinton, that people were still reporting that the booster was not on their app. I was not aware of that. In fact, a number of noble Lords had told me that it was on the app. I apologise for not recognising this—this is the first I had heard of it.

Baroness Smith of Basildon: The app has crashed.

Lord Kamall: I am told the app has crashed. Thank you. I am being heckled about technology now. I will endeavour to look into that and clearly, the relevant people at NHS Digital can do so too. I will try to report back, probably by the Friday meeting.
The NHS will offer anyone who is eligible their booster jab by the end of January and will contact each group to be vaccinated. In addition, as I am sure a number of noble Lords will appreciate, there have been other settings in their area; for example, a number of pharmacies have erected marquees outside their premises and have rolled out to local communities. There have been partnerships with sports stadiums and places of worship, and I have read of a number of inspiring partnerships that have been formed in order to vaccinate as many people as possible.
We have been working with a number of local community groups, experts and others to try to get to those hard-to-reach communities and those who are more suspicious and less trustful of authority. We are looking at ways to do that. I am also grateful to the many noble Lords who have given me their advice on how we should reach more groups. I continue to welcome that advice, but we stress, as noble Lords across the House recognise, that we really need to roll out the vaccines as much as possible.
On ventilation, oxygen monitors were provided for all state-funded education settings from September so staff can quickly identify where ventilation needs to be improved. Letting fresh air into indoor spaces can help remove air that contains virus particles and is important in preventing the spread of Covid-19. Backed by a £25 million government investment, the new monitors will enable staff to act quickly when ventilation is poor and provide reassurance that existing ventilation measures are working.
The noble Baroness, Lady Brinton, also asked about the immunosuppressed. Shielding was introduced at the start of the pandemic urgently to protect the most vulnerable. While the advice serves the important purpose of safeguarding the most vulnerable people from the risk of infection, this has always been balanced against the significant impact that such restrictive guidance has on individuals’ lives and their mental and physical  well-being. Following the advice, we ended that shielding and are now doing everything in our power to make sure that the severely immunosuppressed are able to get their third dose and that those at higher risk who test positive for the virus will be able to access the novel monoclonal antibody Ronapreve or the antiviral molnupiravir from 16 December.

Baroness Masham of Ilton: My Lords, I thank the Minister for repeating this very important Statement. Many people are concerned about taking the booster because they do not know what the result will be of mixing vaccines such as Pfizer and AstraZeneca. Nobody seems able to give advice. It is very worrying. GP surgeries just do not want to know. What can the Minister do about this? Some of these people are elderly, but there are also young people. How can one advise them? They want to speak to a human being, not just a repeated voice which does not answer their questions. Some of these people are pregnant. The ones I talk to are in a rural area; I do my best to tell them how important it is to have a vaccine, but they just want an official voice. I hope the Minister can give some advice.

Lord Kamall: I thank the noble Baroness for that question. As far as I am aware, the places administering the booster should be able to give that advice. For example, when I walked in for my booster, they asked which vaccines I had previously had and said that the half-dose I had was sufficient. When I asked about my children, they told me which vaccine was more appropriate for that age group, depending on which vaccine they had. If that advice is not available at the place of vaccination, please let me know. I was not aware of that and I promise that I can look into it.
While I am here, I realise that I did not answer the question from the noble Baroness, Lady Thornton, about the R number. It is currently at 0.9 to 1.1; the latest growth rate range for England is minus 1% to plus 1% per day. As the omicron data comes in, that may well increase, but we have looked at all these measures and are being as precautious as we can in balancing everything up.
In response to the earlier question about the pass—I apologise for the long answer—I have just been told that the NHS has tweeted:
“We are aware of an issue affecting access to the NHS COVID Pass on the NHS App and website. We are investigating this as a priority and will update as soon as we can”.
Clearly, the NHS has been listening to this debate and discussion, and I thank the noble Baroness for raising that. I am sure that noble Lords will agree that that tweet shows the effectiveness of having this debate, so that we can share as much information with the public as possible. I repeat this request: if any noble Lords are aware of any particular problems with the rollout, information et cetera, please let me know and I will investigate as quickly as I can.

Lord Naseby: Last evening, I mentioned to my noble friend the predicament of the 300,000 people who are housebound and cannot go and get a vaccination.  I appealed to the Minister, saying that every GP practice knows who these housebound people are and where they live. Will my noble friend now commit himself and the NHS to making sure that every GP practice is asked to go out and give vaccinations to the 300,000 mainly elderly people who are awaiting vaccination?

Lord Kamall: I thank my noble friend for that question. As far as I am aware it has always been the advice that, if people are housebound, they should be able to receive their vaccination in their home. If my noble friend knows of any incidents where that has not happened, please let me know and I will chase them up.

Lord Hussain: We have heard about the advice on face coverings, but could the Minister tell us about social distancing in public places, particularly places of worship?

Lord Kamall: In many public places, advice has been posted about continuing to socially distance, but the main thing is now to wear a face mask and ventilate indoor spaces. But, if social distancing is again seen to be a factor, we will update as soon as  we can.

Baroness Fox of Buckley: My Lords, I did not agree with cancelling Christmas last year: I thought that it was disproportionate and far too risk-averse, based on the evidence then. It was cruel, with millions of front-line workers who had worked their guts out during the lockdowns having their parties cancelled and their family celebrations snatched away. Does the Minister understand what has changed now that the public know they were taken for mugs last Christmas? How can seething citizens, including me, give any credibility to data or a risk-averse plan B being based on evidence, rather than a tactic of political crisis management, which is what it feels like?

Lord Kamall: I understand the frustration of the noble Baroness and a number of civil libertarians, but we have always been clear that we have to have a balance between keeping the British people safe by being cautious and making sure that we follow the data. We have always looked at a number of different factors, including hospitalisations, the proportion of admissions due to infection, the rate of growth in cases, vaccine efficacy and many others—but, quite clearly, when we see this doubling rate of the omicron variant and do not yet have enough data, we are being cautious. By doing this now, we could prevent a worse situation later.

Baroness Blake of Leeds: My Lords, when you go on to your app, you do indeed get a message that says, “There are currently issues with accessing the Covid pass on the NHS app and the website”. Given that the advice is that this mandatory certification will be required from Friday, this is an issue not only for the individuals trying to access the certification but for the venues. Can the Minister assure us that, if the problem continues, there will be clear advice to venues as well? Otherwise, there will be untold chaos when this comes in on Friday.

Lord Kamall: The noble Baroness makes an important point. Let us hope that the NHS will fix it. As the NHS says, it is aware of the issue and will try to fix it and update as soon as possible. But, clearly, if that is not possible, we will have to update the guidance, and I will take that back to the department.

Baroness McIntosh of Pickering: My Lords, I think that my noble friend said that the peak of the omicron infection rate is expected in January. Will he confirm that the lateral flow testing will last through January to March if that is the case? Will he join me in congratulating the Dispensing Doctors’ Association, with which I declare my interest as an adviser, on rolling out specifically the programme to which my noble friend Lord Naseby referred of vaccinating the housebound? Can he look into the fact that the Covid pass that is issued reflects only two vaccines and not the booster vaccination?

Lord Kamall: I pay tribute to my noble friend for making us aware of the dispensing doctors, and for making people like me, who are much more urban-centred, aware of some of the issues in rural areas. On the Covid pass, up to now, in most countries it has not been a requirement to have the booster shown in order to travel. Clearly, all countries will now be updating their travel requirements and restrictions. I am afraid I have a terrible short-term memory. What was the first question?

Baroness McIntosh of Pickering: Lateral flow tests.

Lord Kamall: Yes. Given the advice on testing, especially if you are pinged and have to test, clearly we will make sure that there are sufficient tests available.

Baroness McIntosh of Hudnall: My Lords, can the noble Lord say a word about enforcement? In my observation of the use of face masks on London transport, for example, compliance has increased significantly in the past week, so there is a disposition on the part of many people travelling to comply. But there are still a significant minority—and that minority is important—who do not comply and do not appear to carry or exhibit any evidence of exemption. Will people whose job it is to ensure that people on public transport or elsewhere are wearing masks get the help and guidance they need to understand where the limits of their powers might be?

Lord Kamall: Enforcement has been a constant concern throughout, and workers have been concerned about having to enforce. The police and certain transport operators may issue fixed penalty notices to those  who refuse to wear a face covering when required to do so and are not exempt or do not have a reasonable excuse. This will be used only as a last resort. The fines will start at £200, which will be halved if paid within 14 days. For repeat offenders, the second offence will be £400, the third £800, the fourth £1,600, the fifth £3,200, and the sixth and subsequent offences £6,400. The price mechanism will be used as a deterrent, but I am sure that the authorities will exercise discretion, so they may give an informal warning first, as has happened.  They can also take measures if members of the public do not comply with this law without a valid exemption. They can deny access to public transport services, and direct someone to wear a face covering or leave a service if they are not wearing one without a legitimate reason.

Lord Fox: My Lords, the Government are effectively outsourcing a lot of the policing of this to the businesses of this country—small, medium and large. Those businesses will not be able to do that unless they have a full understanding of what is expected of them, full public backing from the Government that they have to do this and details of how they will be helped. I understand that it is not the Minister’s portfolio, but I ask that he takes this to both BEIS and the Treasury and that we get quick answers for British businesses, which have to police vaccine passports and the use of masks all over this country for this policy to have any reason at all.

Lord Kamall: I thank the noble Lord; we had a conversation earlier about the importance of business and of informing businesses as quickly as possible, and the important role that they play. It is clear that the police and transport operators have fixed penalty notices. We know how sometimes it can be difficult for individuals, particularly in retail, to enforce the law—that they are worried about being seen as police officers. But we hope to make it clear that it is an offence not to wear a mask in places where you are required to do so, and we are issuing further guidance on that. I will take the matter back, as the noble Lord says, and get a cross-governmental response.

Lord Patel: My Lords, I cannot resist this: my app did not crash because it is Scottish. Can the Minister clarify the government advice to work from home if he can? Is the advice that you should or that you could? Secondly, what advice do the Government have for people who have recovered from Covid on the risk of them spreading the virus, and for how long?

Lord Kamall: I am pleased to hear that someone’s Covid app has not crashed. I am not sure if it is due to Scotland or if that is a coincidence; some of the people in the devolved Administrations may want to raise that with me. The guidance is that you should work from home if you can, but clearly there are some issues. I know that there were mental health and other issues before, but that is the guidance. On the medical question, I hope that the noble Lord will join the all-Peers meeting with Dr Jenny Harries on Friday, when he will be able to put that question to her. If not, he should write to me and I will put that question  to her.

Baroness Neville-Rolfe: I thank my noble friend the Minister for making a timely Statement, for the boost to the booster programme and for progress on Covid drug treatments. All are very important to our families and friends, and to the country. Against that reassuring background, I think that some of this evening’s comments were a bit over the top and, I have to say, my NHS log-in leapt into life as the Minister was speaking, so it looks as though it is back on track. I have two questions for him. The first is for an update  on cancer cases, especially the outstanding number of cancer operations and hospital treatments, and the impact of plan B on their throughput. My second concern is the economic impact of these new measures until the sunset date of 26 January. We have working from home, vaccine passports and enforcement of masks, which will hit travel, entertainment, business, hospitality and so on. What is this wider economic hit? The Government will not publish impact assessments, as they should, despite my efforts to persuade them, but can the Minister expand on the economic aspects and the impact on growth, employment and productivity? The country is indebted as a result of Covid—and the hit has been 10% over the last year—and businesses have been hit by this. We have to look at the economic side as well as the disease control side, which he dealt with so well.

Lord Kamall: I thank my noble friend for making those two important points. As we know from what happened previously, as a consequence of lockdown, many people were unable to have operations or even diagnoses. In fact, much of the waiting list—80%—is for diagnosis. It is too early to tell what the impact will be, but I will find out and write to her. It is quite clear that there will be a negative economic impact. I do not think one has to be the former head of research for an economic think tank to say that, but it depends on how long this lasts and what economic activity continues in the meantime. I will look at that.

Lord Kakkar: My Lords, the Minister rightly made the point that two variants will shortly be circulating in high volume—the delta and omicron variants. Is he content that there is sufficient genomic sequencing capacity to distinguish between the two and, therefore, understand the epidemiology and the natural history of the two competing virus strains, at a basic level?

Lord Kamall: I attended a meeting this afternoon with leading epidemiologists, showing the data and separating the omicron variant, the delta variant and the original coronavirus. They have the data, and one of the reasons we have made this announcement is because we are able to distinguish between them. We are constantly reviewing the data for the original coronavirus and the variants but, if the noble Lord has any more scientific or medical questions, he should let me know or attend the briefing with Jenny Harries on Friday.

Lord Scriven: My Lords, the Statement says that the Government are looking to introduce daily tests for contacts instead of self-isolation. I have a couple of questions. My noble friend Lady Brinton asked what the false negative rate is for lateral flow tests at the moment. Secondly, what will be the legal obligation for a person to take this test and then to upload the result so that people know that contacts are taking the lateral flow test?

Lord Kamall: I am not quite sure about the latest data, because clearly more people have been taking them, but accuracy was in the very high 90s. However, I will commit to write to the noble Lord. On his second question, I will make sure that we get that information out as quickly as possible.

Police, Crime, Sentencing and Courts Bill
 - Report (1st Day) (Continued)

Clause 7: Duties to collaborate and plan to prevent and reduce serious violence

Amendment 2

Lord Sharpe of Epsom: Moved by Lord Sharpe of Epsom
2: Clause 7, page 9, line 15, at end insert—“(za) publish the strategy,”Member’s explanatory statementThis amendment requires specified authorities to publish a strategy prepared under Clause 7.

Lord Sharpe of Epsom: My Lords, this group of amendments responds to various recommendations made by the Delegated Powers and Regulatory Reform Committee. I am grateful to my noble friend Lord Blencathra and the other members of the committee for their careful scrutiny of the Bill. These amendments address issues across the Bill, but I hope the House will agree that it would be convenient to take them together.
Amendments 2 to 10 in Clauses 7 and 8 give effect to the DPRRC’s recommendation that provision for the publication of local strategies to prevent and reduce serious violence should be made in the Bill rather than in regulations. The amendments therefore require relevant authorities to publish their strategies, but this is subject to certain safeguards. These safeguards are that material should not be included in the strategies if the specified authorities consider that it might place the safety of any person in jeopardy, prejudice the prevention and detection of crime or the investigation or prosecution of an offence, or compromise the security of, or good order or discipline within, an educational, prison or youth custody authority. I am sure that noble Lords would agree that these are important caveats.
Amendments 36, 42, 65 and 95 respond to recommendations by the DPRRC relating to the parliamentary scrutiny of statutory guidance. Here we have accepted the committee’s recommendations in part only. There are various powers in the Bill for the Secretary of State to issue guidance in relation to the serious violence duty, offensive weapons homicide reviews, powers to tackle unauthorised encampments, and serious violence reduction orders. The DPRRC recommended that such guidance should be subject to the negative procedure, or, in the case of the SVRO guidance, the affirmative procedure.
The purpose of guidance is to aid policy implementation by supplementing legal rules. A vast range of statutory guidance is issued each year and it is important that guidance can be updated rapidly to keep pace with events. There is nothing to prevent Parliament scrutinising guidance at any time. It is therefore the Government’s view that it is not necessary to make specific provision for parliamentary scrutiny for most forms of statutory guidance, and there are plenty of precedents for this approach. To take one  recent example, the Domestic Abuse Act 2021 enables the Secretary of State to issue guidance to the police in relation to domestic abuse protection orders; they are required to have regard to the guidance. Such guidance is not subject to any parliamentary procedure, and the DPRRC did not comment on that fact when the legislation was going through this House last Session.
Amendments 67 and 68 relate to the powers to attach conditions to a diversionary or community caution, specifically those which relate to the maximum hours of unpaid work, number of attendance hours and level of financial penalty. Clause 100 as currently drafted provides that only regulations increasing the maximum financial penalty and the maximum number of unpaid work or attendance hours attached to a caution will be subject to the affirmative procedure. The DPRRC recommended that regulations decreasing these maxima should also be subject to the affirmative procedure and, having considered the committee’s arguments, we agree.
Finally, Amendment 83 responds to the committee’s recommendation that the power for the Secretary of State to activate a problem-solving court pilot indefinitely should be subject to the affirmative resolution procedure. This amendment gives effect to the committee’s recommendation by separating the power to extend indefinitely from additional powers granted to the Secretary of State under Schedule 13. As such, this amendment ensures that the Secretary of State’s power to specify which courts are pilot courts for the 18-month pilot period, the cohort of offenders to be subject to the pilot arrangements, and the ability to extend a pilot for a specified period of time, will continue to be subject to the negative procedure.
I am sorry that the noble Lord, Lord Blencathra, could not be here today.

Noble Lords: He is here.

Lord Sharpe of Epsom: He is here—my apologies. In light of all I have said, I hope the House would agree that we have responded positively to the relevant recommendations from the DPRRC and will support these amendments. I beg to move.

Baroness Whitaker: My Lords, I speak on behalf of my noble friend Lady Lister, who had to go to catch her train because of the postponements, and also on my own behalf.
We wanted to raise a point on government Amendment 56, which, as the Minister said, requires guidance for the police on unauthorised encampments to be laid before Parliament. This is of course welcome, but my noble friend says that she wanted to return to the current draft guidance statement that the police, alongside other public bodies,
“should not gold-plate human rights and equalities legislation”
when considering welfare issues.
When she pressed the noble Baroness, Lady Williams, on this in Committee and asked her what it meant—because, on the face of it, it appears to be an invitation to put human rights and equalities considerations to  one side—I believe the noble Baroness, Lady Williams, said that the phrase was “novel” to her and she wrote to my noble friend Lady Lister about it.
In her letter, she explained that this phrase had been used in government guidance on unauthorised encampments since March 2015. But, when my noble friend Lady Lister followed the link in the letter to this guidance, it turned out to be called:
“A summary of available powers”—
which we do not think quite amounts to statutory guidance, and therefore perhaps was not subject to consultation at the time. Certainly, members of the Joint Committee on Human Rights were not aware of it, because they wrote a very forceful letter to the Minister on 17 November in which they
“strongly advise that the Government reviews the language and tone of its draft guidance with respect to its human rights obligations. Human rights are a minimum standard, which apply to all people equally. We do not and cannot ‘gold-plate’ human rights.”
Likewise, the British Association of Social Workers has written:
“We do not accept that this”—
gold-plating—
“is reasonable guidance. The wording is of no assistance to social workers or other professionals.”
It sees it as a
“disturbing attempt to water down fundamental human rights in relation to Romani and Traveller people”.
In her letter, the Minister wrote of the
“necessary balancing of the interests and rights of both Travellers and settled residents”.
But we ask her—or the appropriate ministerial colleagues —to look again at this wording in the light of the JCHR’s and the British Association of Social Workers’ responses. It would appear that they were not consulted when the “gold-plating” phrase was originally used in 2015 and I ask now whether anyone was consulted.
Also, does the 2015 document constitute statutory guidance as such? If the answer is no in either case, that strengthens the case for reconsidering the use of the term. As the body established by Parliament to provide an oversight of human rights issues makes clear, human rights
“must not be side-lined or undermined for administrative convenience”.
Will the Minister therefore give an undertaking to look again at this, ask the relevant Minister to do so, and report back to us before the Bill completes its passage through this House?
I would like to add that I do feel very uneasy about the use of the term “gold-plating” in statutory guidance about how to enforce law, especially human rights law. The term “gold-plating” does not exist in law and there are no provisions for discretion in the Human Rights Act. The purpose of guidance is to give clarity, and I am afraid that a loose term such as this, giving rise to harmful concepts about different tiers of compliance, undermines clarity. I ask again: what consultation was carried out on this draft guidance? I hope, as it is still a draft, that the Government can get rid of this legal illiteracy.

Lord Blencathra: My Lords, first, I apologise to my noble friend for wrongfooting him. I arrived about 15 minutes ago, having sent a message to the Front Bench earlier today that, since my train was going in slow motion because of wind on the line, I was likely to be here rather late. My message was to thank the Government, the Home Office and my noble friend Lady Williams of Trafford, who took on board the criticisms that the Delegated Powers and Regulatory Reform Committee made. I have the privilege of being chair of that committee for the next three weeks only—so the Government can rest in peace afterwards.
We made a large number of recommendations and, to be fair, the Home Office took them on board and my noble friend has accepted the majority of them. That is a good message to send to other departments. It goes to show that, when my committee makes recommendations, they can be accepted by the Government, because they do not sabotage the Bill or stop the political thrust of what the Government are trying to do. At the very most, our most extreme recommendations may mean that some bit of delegated powers legislation might be debated for 90 minutes in the affirmative procedure—never under the negative, unless it is prayed against—which will mean a Minister having to host a debate for 90 minutes. It will probably be a Lords Minister, because the Commons possibly will not bother. So it can be done.
The only substantive comment that I wish to make is about my noble friend using the standard excuse—although he used it in a more delicate way—that we hear from most departments when they refuse to accept that the guidance to which one must have regard should be seen by Parliament. Some departments take a much more arrogant attitude and say, “Oh, well, we publish lots of guidance every year and we consult the stakeholders and experts, so we don’t need to trouble you people in Parliament who know nothing about it”. That is not quite what they say, but that is the thrust of it. I had a tremendous success last week, when I had a two-word amendment accepted by the sponsor of the Bill and the department—and those two words were “by regulations”. The clause said that “guidance that must be followed will be issued”, and we inserted the words, “by regulations”. That made no difference to the practical effect of the Bill.
The other justification that we often hear is, “Oh, we issue a lot of guidance, you know, and it has to be changed rapidly”. I am not suggesting that it applies to this guidance, but a lot of that is simply not true. If the guidance has to be changed rapidly, it has to be printed and issued. All we say in that case is “Put it in a negative regulation which Parliament can see, and only those who have an interest, or the Opposition, may move a prayer against it”.
We issued a strong report last week, and so did my noble friend Lord Hodgson of Astley Abbotts, from the Secondary Legislation Scrutiny Committee. My committee issued a report complaining strongly about disguised legislation, where the Minister not only has power to issue his own regulations but they are called “directions”, “protocols” and so on. That is disguised legislation. We also complained about skeleton Bills. If you want to see a skeleton Bill, look at the new Bill on  healthcare, where there are about 150 delegations. The Bill has no guts—that will be filled in by legislation later.
I hope that my noble friends will speak to the Department of Health and the Ministers there. I have no idea what our committee will report when we look at the Bill next week, but I suspect that we will be highly critical of the contents. I hope that my noble friend the Minister, coming from the Home Office, can tell the Department of Health to follow our example. If we in the Home Office, one of the mightiest departments of state, can accept the vast majority of suggestions from the Delegated Powers Committee, other departments can do so too, knowing that their legislation is safe. We do not sabotage it and we do not try to stop it. We have no political input on the merits of the Bill; we leave that to noble Lords here. However, we do care about inappropriate delegations.
Having read the riot act on that, I thank my noble friends on the Front Bench for the considerable changes that they have made on this—and I just wish that they would go a wee bit further and accept the last one.

Lord Beith: My Lords, the noble Lord, Lord Blencathra, just illustrated the value of his service as chairman of the Delegated Powers and Regulatory Reform Committee, which the House should thank him for—but in the knowledge that his successor is unlikely to give the Government peace because this is an area where all Governments need to be brought up to the mark. His more wide-ranging report last week illustrates this, and I will refer to it briefly in a moment.
It is good to be in the part of the Bill where the Government have listened, both to the Delegated Powers Committee and to the House itself, where voices were raised, particularly on the issue of the publication of the strategy on serious violence for which provision is made in the Bill. It really does not make sense for a strategy to exist which is not published and which therefore cannot be the subject of accountability. That was quickly recognised by Ministers at the Dispatch Box here. They have acted in accordance with that and I very much welcome that. They have met the objections to publication by specifying areas in which there must be a bit more care about what should not be published because of adverse consequences for the public interest, over things such as custodial institutions and other ways in which material could be released in a way which would be damaging to the general public interest.
That is one area where I am pleased that the Government have listened. I am also pleased that in a number of respects, if not quite all, the Government have responded on issues of laying guidance before Parliament and on providing a parliamentary procedure, either negative or affirmative, for some of the instruments. I will say in passing, however, that laying guidance before Parliament is a bit of a formality. Unless Members of one House or the other find a way of debating it—it is a little easier in this House than the other—laying it before Parliament does not achieve anything practical, whereas having a procedure in the House, defective though the negative procedure is, is much more useful. In most respects that request has been met.
Producing a list of previous legislation which was deficient in this respect is not a persuasive answer to the challenging issues raised by the Delegated Powers and Regulatory Reform Committee and the Statutory Instruments Committee. It is generally recognised that there is a serious deficiency which has been allowed to grow as the scope of legislations has extended. Things which have the practical effect of legislation have become more numerous, but Parliament has not developed effective procedures to ensure good scrutiny and to ensure that the neo-legislation is in workable and legally sound form.
As the committee said in its wider report, if, because of modern conditions, Parliament is being asked to accept new ways of legislating, it is surely right that the Government must stand ready to accept new methods of scrutiny and of being held to account. So, like others, we take the view that there is now an urgent need to take stock and rebalance their relationship. This Bill has arrived at the beginning of that very important process, but it is encouraging that Ministers have at least responded in a number of key respects, and I welcome that.

Lord Paddick: My Lords, noble Lords have already comprehensively covered the ground, and I am especially grateful to the noble Lord, Lord Blencathra, and his Delegated Powers and Regulatory Reform Committee, and to the Government for listening to that committee, and to the concerns that were expressed in Committee, and by the Constitution Committee and the Secondary Legislation Scrutiny Committee.
We are concerned that simply laying guidance before Parliament is not sufficient. It should be by regulations, as the noble Lord has said. However, we are pleased that the Government have listened to some extent and we support these amendments.

Lord Rosser: My Lords, I too will be brief. As has been said, this group includes government amendments relating to recommendations from the Delegated Powers and Regulatory Reform Committee that the Government have accepted. It includes the requirement that strategies under the serious violence reduction duty are published, and that guidance on the series violence duty, police powers under Part 4 and serious violence reduction orders must be laid before Parliament. However, the Government have not accepted every recommendation of the DPRRC, and on some they have gone only half way. For example, the DPRRC recommended that guidance on serious violence reduction orders should be subject to the affirmative procedure, but the Government have made it subject only to the negative.
Like other noble Lords, I extend our thanks to the noble Lord, Lord Blencathra, and the Delegated Powers and Regulatory Reform Committee for the invaluable work that they do and no doubt will continue to do. We welcome the amendments in this group that go some way towards accepting a number of recommendations from the DPRRC, but it is interesting to note that, in its report on the powers in the Bill to introduce unpublished strategies and guidance without parliamentary scrutiny, the DPRRC said:
“We are disappointed that the inclusion of these types of delegations of power—on flimsy grounds—suggests that the Government have failed when preparing this Bill to give serious consideration to recommendations that we have made in recent reports on other Bills.”
This group of amendments introduces some improvements into the Bill, which we welcome. On that basis, we hope that the Government will be in listening mode over the next few days of debate on Report. Perhaps the next Bill that appears before us will not have such powers in it to begin with.

Lord Sharpe of Epsom: I thank all noble Lords who have participated in this brief debate. I do not know whether my noble friend Lord Blencathra was in his place when I started speaking, but I was praising him and his committee—I also praise him for his stealthy entrance. He asked about statutory guidance. As I said in my brief introduction, all the guidance will now be laid before Parliament, as the noble Lord, Lord Beith, noted, and the SVRO guidance will be subject to the negative procedure.
The noble Baroness, Lady Whitaker, asked the most detailed question, on behalf of her noble friend Lady Lister. She asked specifically about the comments on the gold-plating of human rights. I have a copy here of the letter that was sent to the noble Baroness, Lady Lister, and it is very clear that this is about balance:
“This language has been used in HM Government guidance on unauthorised encampments since March 2015,”
as the noble Baroness noted, but it was not statutory guidance; the Bill now provides this.
“That guidance made clear that human rights legislation does not prevent action to protect local amenities and the local environment; to maintain public order and safety; and to protect public health - for example, by preventing fly-tipping and criminal damage.
The necessary balancing of interests and rights of both travellers and settled residents reflects the position regarding qualified rights in the Human Rights Act 1998/European Convention on Human Rights … and the need to maintain good community relations under the Equality Act 2010. But operationally in the past, this may have been misunderstood by some public bodies.”
We have published in draft the guidance to be issued under Clause 65, so it is open to anyone who wishes to comment on the document to do so. We will, of course, continue to take any such comments into account before promulgating the final version of the guidance. With that, I hope that I have answered the questions, and I beg to move.

Baroness Whitaker: Before the Minister sits down, who was consulted on this “gold-plating” terminology?

Lord Sharpe of Epsom: I am afraid I do not know; it goes back to 2015. We will look it up for you.
Amendment 2 agreed.

Amendments 3 and 4

Lord Sharpe of Epsom: Moved by Lord Sharpe of Epsom
3: Clause 7, page 9, line 17, at end insert—“(7A) A strategy under this section must not include any material that the specified authorities consider—(a) might jeopardise the safety of any person,(b) might prejudice the prevention or detection of crime or the investigation or prosecution of an offence, or  (c) might compromise the security of, or good order or discipline within, an institution of a kind mentioned in the first column of a table in Schedule 2.”Member’s explanatory statementThis amendment means that specified authorities may not include certain material in a strategy published under Clause 7(7) as amended by the amendment in the name of Baroness Williams of Trafford at page 9, line 15.
4: Clause 7, page 9, line 20, after “make” insert “further”Member’s explanatory statementThis amendment clarifies that regulations under Clause 7(9) may make further provision about the publication or dissemination of a strategy.
Amendments 3 and 4 agreed.

  
Clause 8: Powers to collaborate and plan to prevent and reduce serious violence

Amendments 5 to 10

Lord Sharpe of Epsom: Moved by Lord Sharpe of Epsom
5: Clause 8, page 10, line 37, leave out “may”Member’s explanatory statementThis amendment and the amendments in the name of Baroness Williams of Trafford at page 10, line 37, page 10, line 38 and page 10, line 39 have the effect that specified authorities are required to publish a strategy prepared under Clause 8.
6: Clause 8, page 10, line 37, at end insert—“(za) must publish the strategy,”Member’s explanatory statementSee the explanatory statement for the first amendment in the name of Baroness Williams of Trafford at page 10, line 37.
7: Clause 8, page 10, line 38, at beginning insert “may”Member’s explanatory statementSee the explanatory statement for the first amendment in the name of Baroness Williams of Trafford at page 10, line 37.
8: Clause 8, page 10, line 39, at beginning insert “may”Member’s explanatory statementSee the explanatory statement for the first amendment in the name of Baroness Williams of Trafford at page 10, line 37.
9: Clause 8, page 10, line 39, at end insert—“(8A) A strategy under this section must not include any material that the specified authorities consider—(a) might jeopardise the safety of any person,(b) might prejudice the prevention or detection of crime or the investigation or prosecution of an offence, or(c) might compromise the security of, or good order or discipline within, an institution of a kind mentioned in the first column of a table in Schedule 2.”Member’s explanatory statementThis amendment means that specified authorities may not include certain material in a strategy published under clause 8(8) as amended by the second amendment in the name of Baroness Williams of Trafford at page 10, line 37.
10: Clause 8, page 10, line 40, after “make” insert “further”Member’s explanatory statementThis amendment clarifies that regulations under Clause 8(9) may make further provision about the publication or dissemination of a strategy.
Amendments 5 to 10 agreed.

Amendment 11

Baroness Meacher: Moved by Baroness Meacher
11: Clause 9, page 11, line 45, leave out from “legislation” to “, or” in line 47

Baroness Meacher: My Lords, I rise to move Amendment 11, and speak to Amendments 22, 25 and 30. I thank the Minister for our very helpful meeting this morning, and for the detailed letter I received at 4 pm. I have carefully considered the points raised, and reread the letter to ensure I had understood it, but the basics facts remain the same—as I think the Minister realises—and I will do my best to explain them.
My comments also apply to Amendment 25, but I will focus on the three identical amendments to the three clauses. They ensure that disclosure of information by one public body to another under Part 2 of the Bill does not contravene data protection legislation. This is an incredibly important principle, yet the data sharing provisions in Part 2, as the Bill stands, would enable data protection legislation to be breached. Data protection legislation does permit information to be shared for the purposes of preventing crime, which is important too. If Amendment 11, along with identical Amendments 22 and 30, is passed, personal data could be passed to be police, but professionals could not be forced to do so against their professional judgment. That is the key principle we want to achieve.
The Minister’s letter says that the data shared under the duty is intended primarily to consist of aggregated and anonymous data, et cetera. But we have to focus on what the Bill says, rather than what our excellent Minister may intend. As I said to her this morning, if our Minister were Home Secretary, I might be content with the wording in the Bill, on this issue—I am not sure about everything else—as I have great respect for both our Ministers.
The Minister also says the duty applies to duty holders, not directly to front-line professionals, including youth and social workers. But it is these professionals who hold the information which the police may find helpful, not directors of social services, for example.
It is vital that, if we are to deal with serious violent crime, we do not undermine prevention work. It is therefore important that young people trust their teachers and youth workers. We believe these professionals must be able to exercise their professional judgment about whether it is more effective and important, in preventing serious violence, to be able to continue working with vulnerable and potentially dangerous young people to steer them away from drugs and crime, or to pass on information to the police. There will be times when the sharing of information with the police may be the first, and immediate, priority. However, if in the professional judgment of the teacher or youth worker working with the young people is the top priority, then she or he must be able to exercise that judgment, in my view.
The Minister is likely to argue that the modification of the disclosure of information legislation envisaged in the Bill is similar to that in other Bills and therefore  should be accepted. We had a lengthy discussion on that issue this morning. On checking these other Bills it appears the context is quite different, as is the nature of the information that may be shared. The closest example is the Environment Act, which uses similar wording to that in Clause 9, under which information sharing may be required. However, in the Environment Act, this relates to whether public authorities are complying with environmental legislation; it has nothing to do with personal information for law enforcement purposes, which is an entirely different matter. The Medicines and Medical Devices Act only requires information to be shared without consent in a veterinary context—you cannot really ask a cow for her consent to pass on information about her. Therefore, this is not relevant to this Bill.
It seems the Government may not have drawn the right conclusions from the criticism of the Met Police’s gangs matrix system. As the Minister knows, Corey Junior Davis was murdered after his details in the Met Police’s gangs matrix were shared and fell into the wrong hands.
The system that produced that breach is being reproduced in the Bill. Surely, we will see replicated across the country other harms generated by the Met Police’s gangs matrix: young people losing college places that would probably have given them a route out of trouble; the application of eviction notices likely to lead them on a downward spiral of drugs and crime; and endless costly and pointless stop and searches, thereby undermining young people. We could also expect a repeat across the country of the discriminatory profiling that was inherent in the Met Police’s gangs matrix.
I very much welcome the Government’s acceptance of the need to respect the professional judgment of medical and social care personnel. All that we are asking for in the amendment and, indeed, the other two in the group is that the same respect for personal judgment be applied to teachers and youth workers as the Government now recognise should be given to doctors and others. Without these amendments, the work of the key public servants to prevent serious violence will be jeopardised, an issue that I should have thought the Government would be concerned about.
The Bill also gives the police the power to monitor compliance with the duty to require other bodies to share information with them, and it gives the Secretary of State enforcement powers to back those police powers. The amendment offers vital protection for professionals in exercising their judgment on how best to reduce serious violence by their clients.
The Minister has said that the collection of data is necessary in order to identify the kinds of serious violence that occur in an area and, so far as it is possible to do so, their causes, and then prepare and implement a strategy with bespoke local solutions. I am sure that the Minister knows that no personal information is required in order to do that. It is well established that anonymous data is sufficient to develop appropriate strategies. The draft statutory guidance says that most information will be depersonalised, but it does not say in what circumstances it will not. If it were clear that it was all about professional judgment, that would be fine—and that is what we are seeking.
These are incredibly modest amendments that, added to the government amendments, would go some way towards protecting the efficacy of our public services and enable young people to benefit from preventive and therapeutic interventions. These are the best hope of preventing serious violence over many years. We are not talking just about a one-off crime here. We are talking about the culture and style of life, and these public servants are working on the front line to try to divert these young people into education, training, jobs and so on. Instead of doing that, it is a huge thing to somehow divert those people into the criminal justice system. Punitive responses are never the right answer to vulnerability and deprivation—generally the backdrop to serious violence.

Baroness Brinton: My Lords, I thank the Minister and her officials in the Home Office and the Department of Health and Social Care for meeting me, the noble Lord, Lord Ribeiro, the General Medical Council, the British Medical Association and the National Data Guardian, and for listening carefully and agreeing that a patient’s personal information should not be disclosed under regulations made under Clauses 9, 15 or 16 by a health or social care authority, which currently includes a clinical commissioning group in England and a local health board in Wales, or under regulations made under those clauses. However, I wonder whether the Minister can help me and confirm that Clause 17, where the Secretary of State can instruct the transfer of information, even if a specified authority refused, will definitely not apply to patient data.
I am entirely supportive of the amendments in the group tabled by the noble Baroness, Lady Meacher, the right reverend Prelate the Bishop of Manchester and my noble friend Lord Paddick. While I am grateful that the Government have recognised that there is something particular about a patient’s personal health data, there still remains the issue relating to staff in a specified authority being asked to hand over personal data to the police and other bodies. There are some roles, such as youth workers and children’s home workers, where trust has had to be built up with the people who come to them. Any data relating to those at-risk people, whether potentially violent or potential victims, should not do anything to harm that relationship. As the noble Baroness, Lady Meacher, has said, anonymised data can be used.
As we know from doctors’ and nurses’ ethical arrangements, there are exceptional times when it is important for such information to be passed to the authorities. I believe that we can rely on the workers in other sectors to see that responsibility. Amendment 24 specifically sets out the ethical and legal rules that should apply.
Finally, I believe that the Secretary of State should not have these powers, however rarely they might be used, so I also support my noble friend Lord Paddick’s Amendment 35.

Bishop of Manchester: My Lords, I rise to support the amendments in my name and those of the noble Baroness, Lady Meacher, and the noble Lord, Lord Paddick. I draw your Lordships’ attention to my interests in policing ethics and my work with the  National Police Chiefs’ Council, as set out in the register. I trust that those interests assure your Lordships that I am a strong supporter of effective policing, not its adversary.
As an occasional statistician, I am also well aware of the power and utility of data. Good data, including on the risks of serious violence, can provide the evidence that allows the limited resources of our police forces to be directed to the particular challenges faced in different contexts and localities. Perhaps it is because I trained not as a lawyer but as a mathematician that I hold firmly to the maxim that, before one can begin to find the right solution, one has to have clearly defined the problem. I am not sure that these clauses, as presently drafted, fully pass that test.
If the problem is that there are occasions when the sharing of personal data will be necessary in order to detect or prevent serious violence, such powers already exist. Indeed, they go further than simply applying to certain public bodies. Like all of my right reverend and most reverend friends on these Benches, I am a data controller—a fancy title—handling often very sensitive personal information regarding clergy, church officers and children who are in the care of churches. I know my general duties regarding when I ought to disclose such data to police or others. When I need specific advice, I have access to my legal secretary, my diocesan safeguarding adviser and others. It is difficult to see what a new duty on some public bodies to share identifiable personal information will add to this.
Alternatively, if the problem is the need to collect and process data sets that allow the setting of more general policing priorities and interventions, it is difficult to see why that cannot be done in ways that remove all identifiable personal details and hence are entirely compliant with the GDPR and other data protection law. I struggle to see why there is a need to create an opt-out for the anonymised data that can drive better policing.
The amendments that I and others have put our names to would, I believe, strengthen the Bill, making it clear that it is seeking not to set aside data protection law but to allow anonymised data to be shared where this will produce better policing outcomes. They would reassure children, vulnerable people, victims of crime and others that their personal data will not be shared, beyond that which is already shared under existing legislation. They would allow youth workers, whether they are employed by the Church, local authorities or whomever, to continue to be trusted by those who come to them.
As has been alluded to, the noble Baroness, Lady Williams—who, were it not for the particular protocols of this place, I would be proud to refer to as my noble friend—has already accepted the principle that health bodies should not be compelled to share patient data. It is not a huge leap to extend that to other authorities.

Lord Paddick: My Lords, I have Amendments 24 and 32 to 35 in this group, and I have signed Amendments 11, 22, 25 and 30, in the names of the noble Baroness, Lady Meacher, and the right reverend Prelate the Bishop of Manchester.
I start with the government amendments that effectively protect patient confidentiality on the basis that, if patients do not trust their doctors to keep sensitive personal information confidential, they will not seek healthcare when they need to. There are already protocols to deal with situations where there is a serious risk of harm to the patient or others which allow the sharing of information. In moving these amendments, the Government have accepted the principle that professionals need to keep sensitive personal information confidential in order to maintain the trust of those whom they are working with. I will return to this shortly.
Amendments 11, 22 and 30 do the bare minimum in maintaining the protection provided by data protection legislation. This is putting down a marker that specified authorities should not simply allow the duty to share information under the serious violence duty to override everything else. We will support these amendments if the noble Baroness, Lady Meacher, divides the House.
But we do not believe these amendments go far enough, in that they do not address the Secretary of State’s enforcement powers. Despite government protestations to the contrary, the almost unanimous view among NGOs is that the new serious violence duty is actually a duty on specified authorities to give information to the police, so that the police can try to arrest our way out of the problem of serious violence—an enforcement-led approach, which even the Commissioner of the Metropolitan Police says is not the solution. What we really need is a truly multiagency public health approach, which has worked so well in Scotland, where enforcement is only one part of the solution .
When I went to Scotland, I met a young father whose partner had committed suicide; he realised that their son would grow up without either of his parents if he did not turn away from violence. With support from relevant authorities, he has done it. How can offenders such as this be expected to trust those in authority when specified authorities are subjected to this new duty to pass what is said to them on to the police, if they are to override existing statutory safeguards and duties of confidence? The Bill would allow the Home Secretary to force them to break that trust.
As noble Lords have already said, the Government have already conceded the principle that in certain situations, guided by existing rules and protocols, information can be kept confidential, as in the case of patient confidentiality. However, sometimes people such as youth workers, social workers or people working in youth offending teams also need to be able to use their judgment about whether to pass information to the police, if they think keeping the trust of the person they are working with is more likely to reduce serious violence than passing that information on. I will be asking noble Lords to vote against the Home Secretary being given the power to force professionals—against all existing legal obligations, implicit duties of confidence and their own professional judgment—to pass confidential information to the police, even when they believe this would be counterproductive. Leaving out Clause 17 would empower the people in the best position to make  those judgments—the professionals on the ground—rather than allowing central diktats from those in the Home Office who have little or no understanding of local circumstances or the individuals involved.
We support legislation that removes barriers to allow professionals working in the field of serious violence to share information with each other, including the police sharing their information. We even support a statutory reminder that authorities, including the police, have a duty to work together to reduce serious violence. What we cannot support is the Home Secretary forcing professionals operating in this scenario to share information that they, knowing the individuals and the local circumstances, believe would be counterproductive to reducing or preventing serious violence.
The Government are keen always to point to previous legislative precedence. When we asked judicial commissioners to give prior approval in cases where informants are being authorised by the police to commit criminal offences and are made exempt from prosecution, we were told that this was being done by the police handlers of those informants, who best knew the individuals and the scenarios in which they were to be deployed. The Government argued that local professionals on the ground should not be second-guessed by judicial commissioners. Here we are, with operational partners being second-guessed by the Home Secretary. Not only is this unacceptable but it is hypocritical for the Government to apply the principle in one situation—that professionals on the ground know best—and then reject it in another, and for the Government to argue that patients must not lose trust in their doctors but that those working to turn offenders away from serious violence can lose the trust of those they work with. I intend to seek the opinion of the House to leave out Clause 17.

Baroness Fox of Buckley: My Lords, I am not particularly keen on GDPR legislation as it is, so I do not want to use it to support this group of amendments. I have also been happy to consider extraordinary measures to tackle things such as knife crime and gangs, because I do not want to pretend that this is a new problem. I live in Wood Green and I have seen someone stabbed. There is a horrible atmosphere in which you fear for young people’s lives. Instead, I want to raise my fear that this could have unintended consequences. It is a question of trust. The young people who we would all like to prevent from being involved in serious violence need to turn to someone and build up relationships with people, if they are to get out of situations where they could be involved in violence.
I will give a couple of examples from youth workers who I have spoken to. A young woman who is pregnant wants to extricate herself from the gang culture, but she worries that, if she talks to people such as youth workers, she will be accused of snitching on the father of her unborn child. That might lead them to the police’s arms, and so on. You can understand the situation. The youth worker reassures them that this will not occur but, actually, you cannot reassure them if the law changes as described. Then there is the young man who considers getting or tries to get himself  out of a situation in which he is involved in gangs, but he is paranoid about the police. It is understandable that certain groups would think that any approach to anyone in authority would lead them into the police’s clutches. Actually, any attempt by a youth worker to reassure them that they should not be paranoid would be incorrect in this instance—they were right to be paranoid, because they are potentially putting themselves in the police’s clutches.
I ask the Minister how we can avoid the unintended consequences of this. I know that those individual youth workers will not necessarily be affected, but they work for institutions that have to make data available. Those anecdotes will become data points and important information can therefore be shared when it should not be. I note that I have told those stories anonymously and that I was given that information without any personal data being passed on. If you want to develop new strategies to tackle serious violence, it can be done without handing names, addresses and personal details to the police.

Lord Rosser: My Lords, I will endeavour to be brief. This group of amendments includes government concessions to include extra protections on doctor-patient confidentiality and healthcare data. They provide that the powers under the serious violence reduction duty do not authorise the disclosure of patient or personal information by a health or social care authority. We support the amendments in the name of the noble Baroness, Lady Meacher, which, among other things, leave out the uncertain language in brackets in the Bill.
To be a bit clearer about it—although the noble Baroness, Lady Meacher, explained it extremely well, as one would expect—the serious violence reduction duty requires data sharing between bodies, and the Bill currently provides that data cannot be shared if it would breach data protection laws. It qualifies that with:
“(but in determining whether a disclosure would do so, any power conferred by the regulations is to be taken into account)”.
An amendment from the noble Baroness, Lady Meacher, and others would delete the provision in brackets, so data protection law would apply as normal, as it does to medical professionals. A number of noble Lords have referred to other people or organisations who have contact and involvement with that same degree of confidentiality, and professional judgments on disclosure should apply.
The noble Baroness, Lady Meacher, referred to a meeting she had with the Minister and a letter she only very recently received. I assume that is the one dated 7 December. I appreciate the letter and thank the Minister for it but, reading the paragraph that relates to the bit in brackets that the amendment from the noble Baroness, Lady Meacher, seeks to delete, I struggle to understand the argument for having the part in brackets. Why is it necessary?
Why can we not simply leave it, with statements in other parts of the letter that make it clear that data can be shared, where it is lawful to do so, only under the data protection legislation? One would have thought that is surely all we needed to say—not to have something in brackets which I do not fully understand the need  for, despite the letter from the Minister. I sense from what the noble Baroness, Lady Meacher, is saying that she too struggles to understand why we need the bit in brackets at all. I have no doubt that the Minister will comment on that in her response.
Having said that, we welcome the concessions made by the Government on medical data and doctor-patient confidentiality. They show that the Government have accepted, up to a point, that the data-sharing powers in this chapter needed qualification. Data sharing, properly and intelligently done, with safeguards, can be absolutely key to tackling serious violence, to prevent silo working and some of the failures we have witnessed too many times. We have some concerns over the proposal to require all data shared under the duty to be anonymised, as there may be rare but crucial cases where information needs to be more specific to protect the vulnerable and pursue the criminal.
I come back to this point: in welcoming the concessions that have been made, we support what the noble Baroness, Lady Meacher, is seeking to achieve, but we find the language in brackets—to which reference has been made—which appears to qualify the application of data protection law, to be unclear, and we really do not see why those words need to be there at all.

Baroness Williams of Trafford: My Lords, I thank all noble Lords who have spoken to this group of amendments, which concern the data-sharing provisions in Chapter 1 of Part 2 of the Bill. I thank the noble Baroness, Lady Meacher, for the time she has given me today and the discussion we have managed to have. I actually think we sneakily agree with each other—but not for the same reasons. Before responding to her amendments and those of the noble Lord, Lord Paddick, I will deal with the government amendments in this group, which, if I may take the mood of the House this evening, appear to have attracted broad support.
Information sharing between relevant agencies is essential to the effectiveness of the serious violence duty. It is very important to note that it can be shared only in compliance with data protection legislation. Nothing in this Bill either waters down that legislation or breaches it. The duty will permit authorities to share data, intelligence and knowledge to generate an evidence-based analysis of the problems in their local areas. In combining relevant datasets, specified authorities, local policing bodies and educational, prison and youth custody authorities within an area will be able to create a shared evidence base on which they can develop an effective and targeted strategic response with bespoke local solutions. We can see this in other areas where local bodies work together.
Each of the authorities specified in the legislation has a crucial role to play, and it is vital that authorities are able to share their data to determine what is causing serious violence in the local areas. For example, information sharing can contribute to local efforts by allowing authorities to identify patterns and trends, geographical hotspots and the most vulnerable victims, much in the way that the noble Baroness, Lady Fox, outlined.
That said, I have listened carefully to the issues raised in Committee, in particular on the question of whether it is appropriate to allow any obligation of confidence owed by the person making a disclosure, or any other restriction on disclosure, to be set aside in the case of sensitive and confidential personal information. In bringing forward amendments to address these concerns, we absolutely need to balance the protection of sensitive personal information with the need to ensure that the new duty can deliver a sea-change in how agencies work together to prevent and reduce serious violence. I have listened to the particular concerns in respect of patient information, which is why I have tabled these amendments.
The government amendments will provide that personal data cannot be disclosed by a health or social care authority—that is, a clinical commissioning group in England or a local health board in Wales—under Clauses 15 or 16 or regulations made under Clause 9. In addition, personal information which is patient information cannot be disclosed by any authority under the powers conferred by the duty. This will further limit the disclosure of information under these new powers, in particular confidential patient information held by any authority under the duty and personal data held by health or social care authorities. It is necessary to take both of these steps to exclude patient data explicitly because health and other authorities under the duty may hold this information. For example, local authorities might hold, and will hold, social care patient information. As a result, excluding patient information will mean that no authority can share that information under the provisions in this Bill and will instead need to rely on existing legal gateways should they need to do so.
In order to support the approach of the Secretary of State for Health and Social Care to streamlining the number of data collections currently undertaken and reducing the burden on front-line agencies and bodies responding to information requests from local policing bodies—that is, PCCs and equivalents—made under Clause 16, we are limiting these to information already held by an authority to whom the request is made.
Turning to the amendments in the name of the noble Baroness, Lady Meacher, let me respond first to Amendments 11, 22 and 30, which relate to the provisions in Clauses 9, 15 and 16 which provide that, in determining whether a disclosure would contravene the data protection legislation, the power conferred by the relevant section of the Act is to be taken into account. The explanation of this is a bit complex and, before I set it out, it may assist the House if I reiterate the intention behind the clauses.
Clause 9 supports collaborative working, including by conferring a power on the Secretary of State to make regulations which authorise the disclosure of information between authorities subject to the serious violence duty and other prescribed persons in a prescribed area for the purposes of preventing and reducing serious violence. This might include organisations within the public, private or voluntary sectors, as well as regional or national bodies. This would be a permissive  gateway, so would permit, but not mandate, the sharing of information, and any disclosures must only be made in compliance with data protection legislation and cannot be made if certain prohibitions on disclosure set out in the Investigatory Powers Act 2016 apply.
To give an example, a voluntary organisation prescribed under the regulations could share management information about the characteristics of its clients and beneficiaries which could support the development of a local needs assessment. I should stress, however, that such voluntary organisations would not be required to provide personal information on their clients by regulations made under Clause 9.
Clause 15 will create a new information-sharing gateway for specified authorities, local police bodies and education, prison and youth custody authorities to disclose information to each other for the purposes of their functions under the duty. Again, this clause will permit, but not mandate, authorities to disclose information to each other.

Baroness Meacher: My understanding is that the police are able to require information to be given and Clause 17 gives the Secretary of State the power to reinforce that. As the Minister suggested this morning, the matter would then have to be determined in the courts. This is really the nub of it. We want professionals to feel able to undertake their work to prevent serious violence, with children and young people who really are pretty problematic, without feeling that, in the end, it will go to court to decide whether they are allowed to exercise their professional judgment.

Baroness Williams of Trafford: If the noble Baroness will be patient, I will get on to Clauses 16 and 17 in just a second.
Going back to Clause 15, this will permit, but not mandate, authorities to disclose information to each other. It simply ensures that there is a legislative basis in place to enable information to be shared between all authorities exercising functions under Chapter 1 of Part 2 of the Bill. The clause also ensures that any disclosures must only be made in compliance with data protection legislation and cannot be made if certain prohibitions on disclosure set out in the Investigatory Powers Act 2016 apply.
Clause 16 provides a power for a local policing body—a PCC or equivalent—to request information from a specified authority, educational authority, prison or youth custody authority for the purposes of enabling or assisting the local policing body to exercise its role to assist duty holders and monitor its functions to prevent and reduce serious violence. While Clause 16 places a statutory requirement on the specified authority, education authority, prison or youth custody authority to comply with such a request, a disclosure is not required if it would contravene data protection legislation or prohibitions in specified parts of the IPA 2016. The provision does not place any mandatory requirements directly on individual professionals to disclose information they hold under the duty, be that confidential information or otherwise.
There are also a number of safeguards in relation to the information that can be required. As proposed by government Amendment 20, local policing bodies must  request only information already held by that authority. Requests must be related to the organisation or function to whom the request is made, except when functions are contracted out. Additionally, the information supplied under Clause 16 must be used by only the local policing body that receives it to enable or assist that body to assist the relevant authorities or monitor the activity it undertakes under the duty. The information received is not therefore to be used or disclosed onwards to any other bodies for other purposes, such as law enforcement.
It is against that backdrop that we need to consider the provisions in each of Clauses 9, 15 and 16 which Amendments 11, 22 and 30 seek to strike out. These provisions state that, in determining whether a disclosure would contravene the data protection legislation,
“the power conferred by this section is to be taken into account”.
This allows the power or duty to disclose to be taken into account when determining the impact of the data protection legislation. This is to preserve the effect of the data protection legislation, dealing with the logical difficulties that can arise where an information-sharing gateway, such as that proposed by these provisions, prevents disclosure in breach of the data protection legislation, but the data protection legislation allows a disclosure which is required or permitted by the enactment. This is to ensure that these provisions can be taken into account when authorities are determining the legal basis for processing data under Article 6 of the UK GDPR.
This Bill is by no means unique in including this drafting. The provisions have been used for a number of other information-sharing clauses, including most recently the Environment Act 2021 and the Forensic Science Regulator Act 2021. I know that I am not allowed props in your Lordships’ House, but if I hold up the list to myself, there are a huge number of Bills to which this pertains. This is a standard provision. I also reiterate that both Clause 15 and regulations made under Clause 9 provide for permissive gateways, meaning that they do not impose any obligation to share information. That is a crucial point.
On Amendment 25, I totally agree that any decision to disclose an individual’s personal data should not be taken lightly. The rationale for not excluding all personal data sharing under the duty is clear. Private and confidential health data has a unique status and needs special protection or trust between patients and doctors. That could be undermined, with individuals actually going as far as to avoid treatment for fear of their data being shared. However, in order for the duty to be effective, we really must still support sharing of case-specific information on individuals at risk to both safeguard them and support vital interventions; I know that the noble Baroness, Lady Meacher, agrees with that point. Decisions about whether disclosures of personal data can lawfully be made under these provisions would always need to be made on a case-by-case basis, and always in line with data protection legislation.
As I said in previous debates, we are not seeking to replace existing data-sharing agreements or protocols, including those under the Crime and Disorder Act 1998. All authorities subject to the duty should have clear processes and principles in place for sharing information and data. Any and all exchanges of data and information  under Clauses 15 and 16 or regulations made under Clause 9 must not contravene existing data protection legislation or provisions of the IPA 2016.
I turn to the amendments tabled by the noble Lord, Lord Paddick. Amendment 18 seeks to ensure that relevant authorities are obliged to comply with the serious violence duty only to the extent that it does not conflict with its other statutory duties. We do not support this amendment, as it is essential that all relevant authorities are legally required to collaborate with the specified authorities or with other education, prison or youth custody authorities in their work to prevent and reduce serious violence when requested to do so, and to carry out any actions placed on them in the strategy. There are already sufficient safeguards in place, including considering whether the request is deemed to be disproportionate to the local serious violence threat level, whether it would be incompatible with an existing statutory duty or, indeed, whether it would have an adverse effect on the exercise of the authority’s functions, or would mean that the authority incurred unreasonable cost. In determining whether any of those conditions apply, the cumulative effect of complying with duties under Clause 14 must be taken into account.
We think that this approach strikes the right balance in ensuring that institutions which are affected by serious violence, or may have a valuable contribution to make to local partnership efforts, will be drawn into the work of the local partnership without placing unnecessary burdens on those which may not. This approach is also consistent with the structures and processes in place for existing safeguarding legislation and would allow for an effective and targeted approach within both the education and prison sectors.
Amendments 24, 32 and 33 require that any information disclosed under Clauses 15 or 16 or under regulations made under Clause 9 must comply with any duty of confidence owed by the person making the disclosure, where disclosure would amount to a breach of that duty, the Human Rights Act 1998, the Equality Act 2010, the data protection legislation, the Investigatory Powers Act 2016, and any other restriction on the disclosure of information, however imposed. In addition, Amendment 33 also specifies that no regulations may be published under Clause 9(2) prior to the Secretary of State publishing an equality impact assessment, a data protection impact assessment and a description of any guidance or codes of practice.
We think that the amendments are not needed, as public authorities are already required to act in compatibility with ECHR convention rights by virtue of Section 6 of the Human Rights Act 1998 and, similarly, the relevant duties in the Equality Act 2010 such as the public sector equality duty already apply. Clauses 9, 15 and 16 also already ensure that data can be disclosed only in compliance with data protection legislation, which requires a case-by-case consideration of the necessity and proportionality of disclosure, and where disclosure is not prohibited by certain provisions in the IPA. Obligations of confidence and other restrictions on disclosure are not breached—

Lord Falconer of Thoroton: Is the Minister saying—I take Clause 9(5)(a) as an example—that, when considering necessity and proportionality under the data protection legislation, the existence of this power is not relevant because the data protection legislation will determine whether it is necessary and proportionate, and the only significance of the words in brackets is to make it clear that this opens a new gateway?

Baroness Williams of Trafford: Can the noble and learned Lord elucidate?

Lord Falconer of Thoroton: Under the data protection legislation, whether or not to disclose the information depends in part on its necessity and proportionality, which is a balancing act. I think the noble Baroness is saying that the words in brackets are there—I am taking Clause 9(5)(a) as an example—only to make it clear that we are opening a new gateway here. They are not there to say, “In considering necessity and proportionality, have regard to the fact that this new power is given”. Is that what the noble Baroness is saying about how the words in brackets operate? If it is too late at night and I am not clear enough, she can by all means write to me, but it is quite important.

Baroness Williams of Trafford: The words provide that the processing is lawful under data protection legislation.

Lord Falconer of Thoroton: Is that separate from the words in brackets?

Baroness Williams of Trafford: My Lords, as I understand it, they must be read with Article 6 of the GDPR, so it is a read-across. Yes, I am tired—my brain is not working very fast today.
Clauses 9, 15 and 16 also already ensure that data can be disclosed only in compliance with the data protection legislation; I mentioned that that requires a case-by-case consideration of the necessity and proportionality of a disclosure.
Obligations of confidence and other restrictions on disclosure are not breached by a disclosure under Clauses 15 or 16, or regulations made under Clause 9, but patient information and personal information held by a health or social care authority should not be shared in line with our proposed amendments, as it is vital that authorities are able to share their data when necessary to determine what is causing serious violence in local areas. Our draft statutory guidance provides some additional steers on this, and the guidance will be subject to formal consultation following Royal Assent and can be revised if it needs further clarification.
I turn to Clause 17, and first I shall answer a point made by the noble Baroness, Lady Brinton. A direction under Clause 17 cannot be made to require information requested under Clause 16 to be provided if the information is patient information or if the health or social care authority is requested to provide personal information. I hope that she finds that clarification helpful.
Amendment 35 strikes out Clause 17, which confers a power on the Secretary of State to direct a specified authority, educational, prison or youth custody authority,  where it has failed to discharge its duty imposed under the Bill. I assure the House that we expect these powers to be seldom used and utilised only when all other means of securing compliance have been exhausted. However, in order for this duty to be effective, there needs to be a system in place to ensure that specified authorities comply with the legal requirements that we are proposing to help prevent and reduce serious violence.
I hope, in the light of my explanation, that the noble Baroness, Lady Meacher, and the noble Lord, Lord Paddick, will be content not to press their amendments and support the government amendments.

Baroness Meacher: My Lords, first, I thank the right reverend Prelate the Bishop of Manchester and the noble Lord, Lord Paddick, very much for their support for these amendments and their excellent contributions, and I thank all other noble Lords who have contributed today—in particular the noble Lord, Lord Rosser, who has been very helpful behind the scenes, despite a slight issue this evening, as we know.
I thank the Minister for her reply. Her remarks must have left noble Lords completely confused because, of course, if these clauses really were benign, we would not have Amnesty International, Liberty and about a dozen other organisations desperate for these amendments to pass this evening. The fact is that they are not benign, and I congratulate the Minister on the brilliant wording that has somehow left me bemused, along I am sure with everybody else in this Chamber.
I regard the issue of the ability of professionals to exercise their professional judgment in deciding whether to pass information to the police, which could jeopardise the very vulnerable young people they are working with, as a very important issue of principle. It is for that reason that I wish to test the opinion of the House—albeit I know our numbers are severely limited at this very late hour—and call a vote.
Ayes 85, Noes 103.

Amendment 11 disagreed.

Amendments 12 and 13

Baroness Williams of Trafford: Moved by Baroness Williams of Trafford
12: Clause 9, page 12, line 2, at end insert—“(5A) Regulations under subsection (2) must not authorise—(a) the disclosure of patient information, or(b) the disclosure of personal information by a specified authority which is a health or social care authority.”Member’s explanatory statementThis amendment and the amendment in the name of Baroness Williams of Trafford at page 12, line 11 require regulations under Clause 9(2) to provide that they do not authorise the disclosure of patient information or the disclosure of personal information by a health or social care authority.
13: Clause 9, page 12, line 11, at end insert—““health or social care authority” means a specified authority which is listed in the first column of the table headed “Health and social care” in Schedule 1;“patient information” means personal information (however recorded) which relates to—(a) the physical or mental health or condition of an individual,(b) the diagnosis of an individual’s condition, or(c) an individual’s care or treatment,or is (to any extent) derived directly or indirectly from information relating to any of those matters;“personal information” means information which is in a form that identifies any individual or enables any individual to be identified (either by itself or in combination with other information).”Member’s explanatory statementSee the explanatory statement for the amendment in the name of Baroness Williams of Trafford at page 12, line 2.
Amendments 12 and 13 agreed.

Amendment 14

Lord Young of Cookham: Moved by Lord Young of Cookham
14: After Clause 9, insert the following new Clause—“Serious Violence and the Housing Act 1996The Secretary of State must, before the end of the period of 3 months beginning with the day on which this Act is passed, issue a code of practice under section 214A of the Housing Act 1996 on preventing serious violence to provide—(a) that the application of section 177 of the Housing Act 1996 is to be applied to those at risk of serious violence so as to ensure that it is not deemed reasonable for a person to continue to occupy accommodation if the provision of alternative accommodation would prevent or reduce the risk of serious violence against that person;(b) for the Homelessness Code of Guidance for Local Authorities to be updated to include a new chapter on the duties of local authorities under sections 7(3A) and 8(3A) of this Act, with particular reference to preventing and reducing serious violence and safeguarding young people at risk of serious violence;  (c) that the police shall be responsible for timely collaboration with housing providers on the reduction of the risk of serious violence to individuals where the exercise of housing duties may reduce or prevent the risk of serious violence; and(d) guidance on the disclosure of information in accordance with regulations under section 9(2) of this Act by and to specified authorities which are housing authorities to prevent and reduce serious violence in a prescribed area, with particular reference to assisting the housing authority with the prevention and reduction of serious violence in the exercise of its duties under Part 7 of the Housing Act 1996.”

Lord Young of Cookham: My Lords, I beg to move Amendment 14 in my name and that of the noble Baroness, Lady Blake of Leeds. This adds a new clause to the Bill after Clause 9—the clause dealing with the power to authorise collaboration to prevent and reduce serious violence. It is the same as Amendment 50, which we debated in Committee on 25 October. It links that objective of reducing serious violence specifically to the area of housing by giving priority to those who need to be rehoused to protect them, for example, from gang violence. Homelessness massively increases a young person’s risk of exploitation and abuse, and a safe and stable home is a key element in preventing and reducing youth violence.
The Government’s Serious Violence Strategy in 2018 identified homelessness as a risk factor in being a victim or perpetrator of violent crime. This has been confirmed by research by Crisis and Shelter. The amendment builds on the protection in the Domestic Abuse Act for victims of violence in the home, extending it to victims of violence outside the home that is every bit as dangerous. Whatever the theoretical protection offered to them by existing legislation and guidance may be, evidence on the ground shows these young people are not getting priority—a fact confirmed by the Child Safeguarding Practice Review Panel. The amendment does not ask for fresh primary legislation but requires current codes of practice and guidance to be updated and refocused, and for the police to collaborate and to ensure that relevant data is shared between authorities where people are at risk.
The Companion says:
“Arguments fully deployed … in Committee of the whole House … should not be repeated at length on report”.
I will therefore refer very briefly to what I said: that we are seeking to ensure that what the Government say is happening, and what should be happening, is actually happening on the ground. I also refer to what noble Baroness, Lady Blake, said when she gave specific examples with fatal consequences of a failure to rehouse a child out of area, and about how local authorities currently view their responsibilities in this area. The noble Baroness will deal with proposed new subsections (c) and (d) in the amendment.
The amendment was supported from the Cross Benches by the noble Lord, Lord Carlile, by the Liberal Democrat Benches and by a former police commissioner on the Labour Benches. In her sympathetic response to that debate, my noble friend the Minister said:
“We will continue to work with the relevant sectors to ensure that the statutory guidance is clear on this point”—
the priority need for those at risk of violence—
“ahead of a public consultation following Royal Assent and prior to the serious violence duty provisions coming into effect”—[Official Report, 25/10/21; col. 572.]
I took comfort from that.
But the amendment goes a bit further than that and refers to the code of practice and guidance under the Housing Act 1996. On that, my noble friend said:
“We think that the current legislative framework and accompanying statutory homelessness code of guidance, combined with the statutory guidance on social housing allocations, strikes the right balance as it considers the vulnerability of the applicant on a case-by-case basis and is the … appropriate means of determining priority for accommodation secured by the local authority.”
My noble friend also referred to the code of practice covering Section 177 of the Housing Act, saying:
“I say to my noble friend at this point that the statutory homelessness code of guidance already provides such guidance for housing authorities when a person at risk of violence or the threat of violence approaches a local authority in housing need. The statutory guidance on social housing allocations also makes it clear that local housing authorities should consider giving preference to such persons.”—[Official Report, 25/10/21; cols. 574-75.]
But the view of the Committee was that this did not go far enough to deal with the often tragic cases that we referred to.
At 5.50 pm yesterday, my noble friend wrote to me about the amendment, and I am grateful for a thoughtful and reasoned response. At the end, she says, “I hope that, in the light of these commitments, you will not consider it necessary to return to this issue on Report”. But the amendment had already been listed for debate today yesterday morning, so she will understand that this hope was ambitious. One argument in her letter for resisting the amendment is a tribute to the ingenuity of the civil servant who drafted it, but it cut little ice with me. This was the suggestion that giving strengthened advice to social landlords about those suffering from serious violence, as proposed, and simply ensuring that what should happen does happen, would add £88 billion to the PSBR. I do not believe that the National Audit Office would reclassify housing association debt on the basis of my amendment.
My noble friend’s letter says that the Government do not think that there is a case for changing the legislation, and I agree; the amendment is about the guidance. Here I welcome what she has said to me— namely, that “officials will work with those in Department for Levelling Up, Housing and Communities and representatives from the housing sector to strengthen the statutory guidance for the serious violence duty”.
In conclusion, can I press my noble friend to give a little more detail of what she has in mind? Will this new guidance complement, and so update, the homelessness code of guidance and ensure that all agencies are adequately protecting those at risk from serious violence, as in the amendment, without requiring them to gather extensive evidence and demonstrate unique vulnerability, often without a clear idea of what it is that they are being asked to demonstrate? In other words, will it make the process more like that for those who are threatened by domestic abuse, as in proposed new paragraphs (a) and (b)? These ensure that all local authorities would be required to consider the needs of individuals at risk of homelessness due to serious violence. At the moment, this is covered by  only one paragraph in the code of guidance, compared with a whole chapter for those at risk of domestic violence. I hope that she is now able to go a little further than she was able to go in her letter and flesh out what she has in mind.

Baroness Blake of Leeds: My Lords, I rise to support the amendment in the name of the noble Lord, Lord Young, to which I am pleased to have added my name; and I would like to take this opportunity to commend him for continuing to pursue the important issues raised and for the clarity in his exposition of the points in front of us. Given the lateness of the hour and how much pressure we know we are under with this Bill, I hope I will not repeat too often some of the points that have been raised already.
In speaking to this amendment, I would like to emphasise that we are aiming to protect some of the most vulnerable children and young people in our communities. I would like to highlight the comments the noble Lord made, knowing of the increased risk to a young person of exploitation and abuse that comes from vulnerability around their housing situation. We know, in the communities where young people are targets of gangs in particular, just how difficult it is to protect them if they are not given the full support from all the agencies that could be involved to help them—and we know that a safe and stable home is a key element in preventing and reducing youth violence.
There surely cannot be anyone in this Chamber who does not want to see an end to the sickening violence that is cutting short the lives of so many young people in the most harrowing of circumstances. The question is, as always: what further steps can we take to prevent such tragedies occurring? For the sake of brevity, I do not want to go over again all the arguments I made at Second Reading, and I will focus my comments on subsections (c) and (d) of the amendment at the end.
I must admit that I find the argument that changes are not necessary because local authorities already have “discretion” to grant priority in the area of rehousing to be far wide of the mark. Unfortunately, we know that local authority interpretation varies and often leaves the onus on immensely vulnerable families to provide evidence at what can be the most traumatic time of their lives. When asked, three in four local authorities have no specific policy governing how they treat people applying for a priority need because of serious violence. In effect, a postcode lottery has been created.
We need to be completely focused on coming up with practical solutions to what I believe are solvable problems. This new clause would ensure that families with members at risk of gang violence are given the support they need, rather than placing it on a legislative footing. This amendment seeks to update the guidance issued by the Government to ensure that all agencies are adequately protecting those at risk of serious violence—in effect, ensuring that all agencies are working together to protect those at risk and that, in this particular case, housing providers are automatically included. There are areas in the country where that relationship exists, and the results speak for themselves.
This new clause seeks to specify in law what the Government say is often happening anyway. Instead of people at risk of serious violence being forced to gather extensive evidence and demonstrate unique vulnerability—something not easily done when you are under threat or in a crisis—this would make the process automatic, as we rightly recognise should be the case for those threatened by domestic abuse.
Subsections (c) and (d) would ensure that housing providers are included in any collaboration around the reduction of serious violence. The Police, Crime, Sentencing and Courts Bill sets out the Government’s ambition to reduce violent crime and address the root causes of serious violence across England and Wales, by making sure that public bodies work together to stop serious violence. However, at present the Bill does not include housing as a partner agency.
The new collaboration duties can play an important role. Given the role which housing often plays in serious violence, whether because of the location of specific threats or criminal activity around particular locations, it is vital that these providers are not locked out of discussions because they are not specified in legislation. By ensuring the guidance specifically includes them, the Government can guarantee that the all the expertise of this sector will not be ignored.
I conclude by repeating the comments of the noble Lord, Lord Young, on bringing in the costs situation. This is about young people’s lives. I hope the Minister can provide further clarity and more progress, as the noble Lord, Lord Young, asked for.

Lord Paddick: My Lords, we support this amendment. As I said in Committee, it is not just victims of domestic violence that need help and support from housing authorities to escape serious violence; young people groomed and exploited by criminal gangs, for example, also need and deserve to be urgently rehoused in certain circumstances. The police need to provide information to housing authorities where they believe that someone is being coerced into criminal activity, where they are being threatened with serious violence if they do not comply, and where the police believe that taking the person out of that scenario by rehousing them can reduce the risk of serious violence. Many of the young people involved in county lines drug dealing have been groomed into criminality and been the victims of child criminal exploitation. They and their families are often terrorised by those higher up the drug-dealing network. In this sort of scenario, the police need to work with social housing agencies to provide a route out of serious violence. We support the amendment.

Baroness Williams of Trafford: My Lords, I thank my noble friend Lord Young of Cookham for setting out the case for his amendment. I also thank the noble Baroness, Lady Blake, and the noble Lord, Lord Paddick. I fully agree that local authorities can and do make a significant contribution to local efforts to prevent and reduce serious violence, and it is vitally important that all victims of serious violence who need to leave their home to escape violence are supported to access alternative safe and secure accommodation.  As my noble friend has already outlined, the statutory homelessness code of guidance provides guidance on local authorities’ duties under Part 7 of the Housing Act. The amendment seeks to place a requirement on the Secretary of State to issue a code of practice under Section 214A of the Housing Act 1996.
The implementation of the serious violence duty will bring additional guidance to which local authorities will have a statutory duty to have regard. The guidance accompanying the duty, to be issued under Clause 18 of the Bill, will reinforce and complement the existing guidance issued under housing and homelessness legislation. Taken together, I hope there will be sufficient guidance in place to ensure local authorities are clear on how the legislation applies in addressing the housing needs of victims of serious violence.
I hope my noble friend agrees—and I think he would—that to introduce another code of practice in addition to the existing homelessness code of guidance and the serious violence duty guidance would lead to unnecessary confusion and duplication. I hope to assure my noble friend this evening that the points his amendment is seeking to address are already covered, and are what we are planning to do in future.
Paragraph (a) of my noble friend’s new clause would require the code of practice to provide guidance on the operation of Section 177 of the Housing Act 1996 in relation to people who are at risk of serious violence.
The Housing Act 1996, as amended by the Homelessness Reduction Act 2017, puts prevention at the heart of the local authorities’ response to homelessness and places duties on local housing authorities to take reasonable steps to try to prevent and relieve a person’s homelessness. When assessing if an applicant is homeless, local authorities should consider any evidence of violence and harassment. Section 177 already provides that someone is considered homeless if it would not be reasonable for them to continue to occupy the accommodation and it is probable that this would lead to violence against them, their family or their household.
Paragraph (b) of the new clause seeks to update the homelessness code of guidance to include a chapter on the duties of local authorities. We are committed to supporting victims of serious violence and know the important role that local authorities play in making sure that such victims get support when they are in housing need.
As noble Lords will know, we published a draft of the statutory guidance for the serious violence duty in May. The debates in both Houses have helped to identify areas which need further development prior to publishing a revised draft, which will be subject to a formal consultation following Royal Assent of the Bill. Officials will work closely with the Department for Levelling Up, Housing and Communities and representatives from the housing sector to strengthen the statutory guidance for the serious violence duty. This will point to the legislation and guidance that is already set out in the homelessness code of guidance and the allocation of accommodation guidance, and showcase examples of good practice in this area which local partners can draw on to raise awareness across public authorities of the legislation which protects this cohort.
I can also give a commitment this evening that we will expand the homelessness code of guidance to include a new chapter on supporting victims of serious violence, which I hope gives my noble friend the assurance he seeks in this regard.
Paragraphs (c) and (d) of the new clause concern the role of the police in timely collaboration with housing providers on reducing the risk of serious violence to individuals, and guidance on the disclosure of information. Of course, we must do all that we can to identify and provide support to the individuals most at risk of involvement in serious violence, including those who might be at risk of homelessness.
As noble Lords have stated, many housing authorities already work with the police and other key partners to reduce the risk of serious violence, including through the provision of alternative accommodation. Where this works well, it is clear that it is vital that services such as youth offending teams, educational authorities and national probation services work together locally to provide support for the household and victim of violence. Housing alone without support, I think noble Lords will agree, is not a sustainable option.
As part of the work to prevent and reduce serious violence, specified authorities in a local area will be required to work together to identify the kinds and causes of serious violence and, in doing so, to establish the groups of individuals who are most at risk in local areas.
The new serious violence duty will facilitate this and is intended to generate better partnership working locally to further protect this cohort. The draft guidance is clear that local authorities are responsible for the delivery of a range of vital services for people and businesses in a local area, including—but not limited to—children’s and adult’s social care, schools, housing and planning, youth services and community safety, so they will have an essential role to play in partnership arrangements. The inclusion of this detail in the guidance for the new duty, alongside the existing homelessness legislation and guidance, is the most effective way of supporting these victims of serious and gang-related violence to relocate and start afresh.
To support the collaboration, Clause 9 provides that regulations can also be made to authorise the disclosure of information, which we talked about earlier,   between authorities and prescribed persons, which might be external bodies for this purpose, so long as it would not contravene existing data protection legislation or be prohibited under provisions of the IPA 2016. This of course would be a permissive gateway, permitting but not requiring the sharing of information.
I hope that, in the light of the assurances and commitment I have given in relation to the statutory guidance and the relevant existing legislation on this matter, my noble friend will be content to withdraw his amendment—and I apologise for the lateness of the arrival of the letter.

Lord Young of Cookham: My Lords, I thank, first, the co-sponsor of the amendment, the noble Baroness, Lady Blake of Leeds, for continuing the duet that we launched in Committee. I am grateful also to the noble Lord, Lord Paddick, for his continued support. I should also mention that I am grateful to Stella Creasy and her office for the briefing that she has been able to give us in connection with the amendment.
There was a lot in my noble friend’s reply and I am very grateful for what she said. I will pick out just three things. She said that the additional guidance under this legislation will place a statutory obligation on local authorities, which will complement existing guidance. I set great store by what she said on that. She also said that the draft guidance that has already been published will be developed further and strengthened in the light of debates in both Houses. She also said, crucially, that there will be an extra chapter to the homelessness guide—again, something that I asked for.
In the words of “Oklahoma”, I think she has gone about as far as she can go. Against the background of the assurances that she has been able to give, I beg leave to withdraw the amendment.
Amendment 14 withdrawn.
Consideration on Report adjourned.
House adjourned at 10.17 pm.